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Resignation: what, why, when and how

BY Donald MacKinnon
Employment Law & HR
BG Purple

“Rangers has accepted the resignations of manager Mark Warburton, assistant manager David Weir and the club's head of recruitment Frank McParland.”...

Simple. Well, not quite. Warburton subsequently stated that he had not resigned and chaos, confusion and hilarity followed. This leads to the following questions.

  • What is a resignation?
  • What do I do when an employee resigns in the heat of the moment?
  • What do I do if they resign in the middle of a disciplinary?
  • Can I suggest an employee resigns?

A resignation is when an employee decides to end the employment relationship. The rules on how they communicate this are usually contained within the contract of employment. The decision to resign is unilateral – so once it has been communicated the employer does not have to accept it for it to stand.

‘Heat of the moment’ resignations are an issue we deal with regularly. An employee is in a meeting with management, it becomes heated and they say, ‘I quit’.

The good news for employers is that an employee cannot unilaterally withdraw their resignation if they subsequently change their mind. An employer can choose whether or not to accept the withdrawal. There are exceptions however, and heat of the moment resignations can lead to difficulties if not handled properly. The context of the resignation has to be taken into account and we would advise that you consider a cooling off period with the employee, maybe a couple of days, before you ask them to confirm their resignation in writing.  This will help prove you are being reasonable.

There have been occasions where employers have interpreted ambiguous wording as a resignation only for the employee to say that they did not resign and claim that the employer over reacted and they were dismissed. In this case a tribunal would look at the circumstances before and after the event to reach a decision. This will be based on what a reasonable employer would do in the circumstances.

One more case where it is important to be careful is if an employee resigns during a disciplinary. They may wish to resign instead of having a disciplinary mark on their record.  In this situation, particularly if this is not in writing, you may want to give the employee the opportunity to ‘cool off’ before accepting the resignation. If it is in writing you may be able to accept immediately, however if the employee has given notice, the employer can still continue with the disciplinary process during the notice period.

A further scenario to consider is a resignation when an employee has been told they have no future in the business and the employer has suggested they resign. This is likely to be considered a dismissal because it is the employer who has initiated the resignation and given the employee little option. Even if this is not considered a dismissal, if an employee has been encouraged to resign this could result in a successful constructive unfair dismissal claim at an Employment Tribunal.

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