What counts as a resignation in employment law?

LUKE HUTCHINGS >

Employment Law Partner

Fri 24 May 2019 What counts as a resignation in employment law?

Employees and employers sometimes ask me about situations where someone has resigned. This is an area of the law where a number of myths and misconceptions linger. Often people are surprised when they learn the following facts about resignation:

Resignations do not have to be “accepted” by the employer - Provided you’ve given a valid resignation, it is effective at once and cannot be refused by the employer or – beware – retracted by an employee who changes their mind!
Resignation should be “clear and unequivocal”- If an employee says something like “oh, well, just wait and see if I turn up on Monday”, this should not be seized upon by the employer and a P45 processed. A resignation should be very clear, while it doesn’t have to be in writing (another common misconception), anyone listening should be in no doubt at all what is intended. An over-hasty employer who treats an employee as resigning when he or she has not, could be accused of unfair dismissal.
Resignations sometimes aren’t effective when given in the “heat of the moment” -How many times have you raised your voice to your boss or a colleague and told them to stick their job? While this could pass the “clear and unequivocal” test above, the law provides an escape route for someone resigning in an outburst. Words spoken in the heat of the moment can be disregarded by the Employment Tribunals, which benefits long-serving (or long-suffering) employees who would otherwise stand to perhaps lose a very longstanding period of employment. Employers should be wary about treating someone resigning in an outburst as a leaver. It’s wise to check back later on with the employee if that really is their intention.
A resignation can also be treated legally as a dismissal by the employer - If an employee resigns their job in the face of gross or fundamental breaches of the employment relationship from the employer, this can be considered a “constructive dismissal”. One of the tests which apply is that the employer’s conduct needs to be so bad that it can be regarded as something no reasonable employee could be expected to put up with.