“Truss me, I quit!” - 5 Tips to Handle Unexpected Resignations and Post-employment Grievances

You no doubt will have witnessed the twists and turns of Liz Truss’s 45-day tenure as Prime Minister of the United Kingdom. Whether or not Liz’s resignation on 21 October was a shock to you (or the plethora of other changes of ministers that we have witnessed), we thought that there was no better time to produce some guidance for employers on dealing with unexpected and “heat of the moment” resignations.

1) Do resignations have to be “accepted” by employers?

There is a common misconception that resignations must be accepted by employers. This is not the case. Employers cannot refuse to accept a resignation which has been clearly and validly given by an employee. The position is that once notice has been validly given (ie the employee gives notice in clear and unambiguous terms), it is effective and cannot be refused.

Unless the employee’s contract says otherwise, there are no statutory requirements that resignations must be given in a specific format. For example, there is no requirement that notice must be given in writing, unless specified in the contract.

2) Can resignations be retracted?

Resignations cannot be retracted unilaterally by the employee. This means that if they have resigned but later changed their mind, they must obtain the employer’s approval to retract their resignation and continue working under their contract of employment.

3) An employee has resigned in the “heat of the moment”. What do I do next?

As above in Question 2, employees do not have the right to unilaterally withdraw their resignation.

However, it is good and established practice that an employee is given the opportunity to withdraw their resignation after they have calmed down. The EAT held in the case of Kwik-Fit (GB) Ltd v Lineham that, “a reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can be properly assumed, then such inquiry is ignored at the employer’s risk.”

For example, in the case of Sovereign House Security Services v Savage, it was found that after being informed that he was suspended when money was found to be missing, Savage responded and said that he is “not having any of that, you can stuff it, I am not taking the rap for that” and called his superior and told him that he would not be in for his shift in the morning. His superior asked him if he was “jacking the job in” and he said yes. It was held in the Court of Appeal that where the context of an exchange was ambiguous and made in the heat of the moment, it was open to the tribunal to find that an employee had not resigned.

A good policy for an employer to adopt here is that if there is any doubt that the employee intended to resign (whether because of the surrounding circumstances or the employee’s personality traits), it is best practice to confirm this with them in writing after a reasonable period of time.

4) Do employees have to serve their notice period?

Where notice is given in repudiatory breach of contract, it will not be effective until it is accepted by the “innocent party”. This means that if an employee were to give one days’ notice instead of one months’ notice under their contract, the resignation would not effectively terminate the contract until it is accepted by the employer.

But what options are available to require an employee to give proper notice? There is obvious difficulty for the employer in this type of situation because they are unable to “compel” the employee to continue working for the required period. In most situations, there is little an employer can do to require the employee to fulfil their entire notice.

However, they may consider:

• If the employer has suffered substantial damage because of the failure to give notice (for example, by having to spend a larger amount to hire someone else on a temporary contract), they may bring a breach of contract claim against the employee. However, it will often be difficult to prove any loss suffered in practice and the employee may not have the funds to pay the damages in any event.
• Alternatively, if the employer is concerned about their intellectual property, confidential information or their client base and wish to prevent the employee from working for a competitor during their notice period, they may seek an injunction to do this. However, injunctions are notoriously expensive to obtain and there are costs risks associated with the process, which may outweigh any potential loss caused to the business by an employee leaving early.

5) An employee has raised a grievance on or after their resignation. How do I need to deal with this?

This is a somewhat of a grey area under the current legislation. The Acas Code defines grievances as “…concerns, problems or complaints that employees raise with their employers.” You would be forgiven for believing that this limits the scope of grievances to during employment, meaning during the employee’s notice period and while they remain employed. However, the Acas Code does not define “employee”, and other legislation (such as the Trade Union and Labour Relations (Consolidation) Act 1992) defines employee broadly enough to encompass former employees.

Once employment has officially ended, there is no explicit requirement in the Acas Code for an employer to follow grievance procedure. However, in the case of Base Childrenswear Ltd v Otshudi, the Employment Tribunal awarded a 25% uplift in respect of the employer’s failure to comply with the Acas Code because they did not respond to the employee’s grievance submitted after her dismissal.

On this basis, it would be wise for employers to continue to follow the Acas Code in respect of post-termination grievances, and treat them as they would complaints by an existing employee. This may prove particularly valuable to prevent Tribunal claims in the long-term.

Conclusion

Resignations can present themselves as tricky issues to navigate for employers, especially when combined with grievance proceedings. If you require further advice on the points raised in this article, you should contact Syma Spanjers, Senior Associate or Sam Lawn, Associate.