Employment advice from Golf HR: Resignation and notice periods

By Alistair June 15, 2024 07:34

My employee resigned yesterday and wants to come back today – do I have to let them?

If it was a ‘heat of the moment’ resignation, usually yes. Resignation is unilateral, which means that you can’t legally refuse to accept it. You actually just acknowledge it rather than accept it.

That said, if there has been a discussion, tempers got frayed, and your employee storms out saying, “You can stuff your job!” you should give them the chance to cool down.

Once they have thought about the mortgage payment and the credit card bill coming in, then let them decide whether they REALLY want to have no salary next month.

If, however, they have stormed out and then backed it up with a written confirmation (email, letter or text) the next day, then I would go ahead and deal with it as a ‘real’ resignation. Particularly if they have under two years’ service.

All that remains is to decide whether you want them to work their notice period and to thank them for their contribution to the company. And they did contribute; otherwise, you, as an effective employer, would have managed them out long ago, wouldn’t you?!

However, the basic position is that the employee does not have the right to unilaterally withdraw their resignation once given. This is because if they now want to be re-employed, it is a ‘request to be employed’, which both parties must want.

You can consider their request and may allow them to retract, but you can also continue to ‘accept’ their resignation, and the employee has to deal with the consequences of their actions.

If you are actually relieved that the employee has resigned and it is no ‘heat of the moment’ resignation, you are free to accept the resignation and breathe a sigh of relief!

If I have a notice period of one month for all employees, does this still apply after eight years’ service?

No, is the quick answer to that.

In the first month of employment, notice can be immediate on both sides.

After the first month, it has to increase to one week on both sides. You can keep the notice period at one week for the first year, or increase it to one month after the probationary period. However, the statutory notice periods will always override what has been written in the contract – unless the contractual notice is longer.

The statutory minimum for EMPLOYERS to give EMPLOYEES is one week’s notice for every full year worked up to 12 weeks’ notice (that is, after 12 years). If you have agreed a longer notice period due to the seniority / importance of the role concerned, that will apply. It still needs to be longer than the statutory minimum. This is really important to bear in mind should you need to make staff redundant.

The statutory minimum notice for EMPLOYEES to give is only one week, no matter how long their service in your company. They may choose to give you more notice, but they are not obliged to.

So, unless you have a different notice period agreed in your contract of employment, then someone who has been with you for eight years could, with accrued holiday entitlement of five days, immediately leave their workplace after they have given notice! What would you do in that situation?!

Make sure you have longer notice periods in your contracts; otherwise, after eight years, they could walk out only giving you one week’s notice.

AWOL – or resigned with immediate effect?

It seems to be in the air. Employees who either go off sick and then don’t ever come back, or others that just don’t show up for work one day.

If this happens to you, you need to try to contact them by post, email, text / WhatsApp message, or social media (if one of their colleagues is connected to them). Immediately and several times. It is always a good idea to check that you have all the contact details for each employee, just in case.

If you have asked them to contact you to no avail, you need to up the ante.

Send them a text / email or letter (or all three) that says, ‘If you do not contact us by 5pm tomorrow, we will assume that you have resigned with immediate effect’. If you are sending it by post, give them more time.

What I usually find is that there is no response to the AWOL ultimatum. Then the employee has ‘resigned with immediate effect’, which means that you don’t have to pay notice. You could dismiss for gross misconduct, but you then have to go through the process. This is a much easier approach.

The best one was when his girlfriend claimed she didn’t know where he was; we went ahead and dismissed and found out a couple of months later that he had been in prison!

And if they do come back to you and say, “No, I haven’t resigned,” then you can sort it out quite easily. I have found they either respond before the deadline or not for weeks, if at all. Nothing in between.