We regularly talk to employers after they have received a resignation and see high levels of emotions at play, generally one or more of:
extreme relief, because the exiting team member was a problem they didn’t know how to solve;
something on the scale of disappointment to bitterness to anger, because they didn’t see the resignation coming;
fear, because the exiting team member is going to the competition;
panic, as they’re not sure how they will cope without that team member;
and in some cases, delight, as they’re thrilled that the team member has got an exciting opportunity in front of them
And when these bubble to the surface, reactions and decisions can be very emotive, rather than logical, objective and appropriate. What we sometimes see is employers who think that because their team member has resigned, there is no need to uphold their employment relationship obligations, either in that moment, or through the team member’s notice period. A recent judgement out of the UK, where the judge found that an employee had been unfairly and wrongfully dismissed by her employer after she resigned, would suggest otherwise.
"This judgment is a stark reminder that employers need to act reasonably and proportionately during the full course of an employment relationship; this extends to dealing with resignations, and their aftermath, in a fair manner.
"Employers should not assume that an employee intending to leave their employment removes the risk of claims and they should be especially careful in how they treat such terminations of employment – the meaning and language around a dismissal is very different to the acceptance of a resignation and can certainly increase the risk of claims…”
There are a range of reasons employers contact us when they get a resignation, sometimes for recruitment of the replacement, but often because they want to know their rights and responsibilities around the exiting team member’s notice period. This can differ from case to case, and generally there is something going on that leads to them checking for advice, but the starting point is always the employment agreement – what does the employment agreement say about notice period – timing, options around payment in lieu, garden leave? What about restraint of trade? Any other obligations (for either party) during and post the notice period?
Above all else, it’s always important to maintain a relationship of trust and confidence with a resigning team member, and remember that they have not committed any breach by deciding to resign.
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