We are often asked to advise employers on situations involving employees who resign or threaten to resign. Unfortunately, there are a lot of misconceptions and myths about resignations, so we wanted to try to lay some of the most common ones to rest.
Myth #1 – Resignations need to be accepted
This is far and away the biggest misconception out there, possibly because it is frequently reported in the media that an employer has “refused to accept” a resignation (this seems to particularly arise in relation to football managers and politicians!).
In an employment relationship, there is no need for a resignation to be accepted by the employer. Resignation is purely a decision for the employee, in the same way that dismissal is purely a matter for the employer – the employer cannot refuse to accept a resignation.
Myth #2 – Resignations need to be in writing
Not necessarily. This may depend on the wording of the contract of employment (assuming there is a written contract). A verbal resignation could be effective if there is nothing to indicate that written resignations are required. If there is a dispute as to what was said (or what was meant by what was said) it may be a matter of evidence for the Tribunal to decide.
If the contract states that notice has to be given in writing, then a resignation will only be effective when it is actually received by the employer. It is also worth noting that in practice, an email will generally meet the definition of being ‘in writing’, and the employer will be deemed to have received an email when it has been read.
Myth #3 – An employer can assume that someone has resigned from how they have behaved
We often receive queries about situations where an employee’s behavior appears to indicate that they no longer consider themselves to be employed, but they haven’t actually clearly stated that they have resigned. Unfortunately despite what a lot of people tend to think, there is no concept of ‘deemed resignation’ or ‘self-dismissal’ in UK law, so it is always best to take advice if you have a situation that you feel is unclear.
Myth #4 Employees can’t change their mind and stay
Although, as stated above, a resignation is purely a decision for the employee and not the employer, there are certain circumstances where an employee may be allowed to change their mind. However, the situations where this could apply are fairly limited.
The most common example is when an employee resigns in the ‘heat of the moment’. If this happens, then case law shows that they should be given a reasonable opportunity to retract their resignation. In these situations, it will quite often be the case that the employer doesn’t want to allow the employee to retract it, and it is then a good idea to take specific advice on whether this needs to be permitted. Often this will depend on how much time has passed since the resignation.
Myth #5 – An employee can’t bring a claim if they stay
The last one in our top 5 can be true in some cases, but we’ve still included it as a myth because it can sometimes be confusing to people. If an employee hasn’t resigned, it is true that it is extremely unlikely that they will be able to claim constructive dismissal (as to bring that type of claim it is normally essential for the employee to have resigned). However, it’s important to be aware that if someone doesn’t resign it doesn’t mean they can’t bring a claim at all, because there are also several other types of claim that someone can bring whilst they remain in employment, including things like unlawful deduction from wages, equal pay, and discrimination.
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.