15 Oct What should I do if an employee resigns before I am able to dismiss them?
The question of whether resignation is preferable to dismissal is one that remains unanswered. Ambiguity aside, it is common for an employee who suspects they are about to be fired to swiftly make their resignation, believing this to be an effective method of salvaging their reputation. How can you respond to this as an employer? Should you accept their resignation or simply brush it aside and continue on with the disciplinary process? Must you provide them with a reference? Read below, where we provide the answers to these questions.
Am I obliged to accept their resignation?
If an employee’s resignation arrives before your chance to dismiss them, your first urge may be to reject it. But are you actually able to do this? Unfortunately, no – if an employee has given their resignation with the appropriate amount of notice, their employer is not able to reject it. The duration of this period should be clearly outlined in the employee’s Contract of Employment; otherwise, providing the period of employment has been a month or more, the employee must give a legal minimum of a week’s notice before their resignation.
From a legal standpoint, an employee’s notice is effective from the moment it is given to their employer. From this point, employer and employee are unable to refuse or withdraw the resignation without the other’s agreement. If you wish, you may request that an employee confirms their resignation in writing, but unless this is included in their Contract of Employment, they are under no legal obligation to do so.
Should I continue the disciplinary process?
You are unable to reject the resignation, but is it worthwhile continuing the disciplinary process? This will depend on whether the employee has resigned with notice, or with immediate effect.
If the employee has given you notice, then yes, you should continue the disciplinary process. Should it be determined that they have committed gross misconduct, you then possess the ability to override any resignation the employee might have given by dismissing them without notice. The reason for termination will then be documented as gross misconduct rather than resignation.
If, on the other hand, the employee has resigned with immediate effect, it’s unlikely that you will need to continue the disciplinary process. Please bear in mind that it’s always good practice to retain any notes that you might have made – they’ll help you defend any claims that might later be made to an Employment Tribunal and serve as evidence that you carried out the procedure correctly and fairly.
What should I include in the employee’s reference?
One question remains, then: are you required to provide a reference for an employee that has resigned? While the employee’s motive for resigning may have been a more positive reference, employers are under no obligation to provide a reference. If you do decide to provide a reference, it may be brief, and does not necessarily need to be positive – please ensure, however, that any information you include is fair, truthful and accurate. You may, for example, mention that an employee was disciplined during their employment, but it would be unfair reference a circumstance in which an employee was investigated for something that it was later found they did not do.
Navigating the various legal pitfalls involved in the disciplinary process can be difficult and even land you in trouble if not done carefully. If you would like assistance at any point of the process, please don’t hesitate to contact BRIDGE today.