So Long – How Nurseries Should Handle Resignations
Vicky Stanton offers some advice on what practitioners and managers should do when a member of staff no longer wishes to work at their setting…
When is a resignation not a resignation?
No, that’s not meant as a joke – this can actually be a bit of a challenge for an employer to recognise sometimes. Here are some common questions that can arise as part of the resignation process…
1. Can you refuse a resignation?
No, you can’t, even if you really don’t want the employee to leave – as long as he or she has given you, the employer, proper notice as set out in the employment contract. If there is nothing detailed in the contract, this is deemed to be ‘silent’, and it is an implied term then that the employee must give reasonable notice to their employer, which will always be at least one week.
2. Can an employee resign with immediate effect?
If an employee chooses to do this they are in breach of the terms of their contract of employment as he/she is not giving the proper notice. In this situation there are a number of options open to the employer:
• The resignation could be accepted This may be beneficial in that the employer doesn’t pay the notice period and won’t have a disillusioned employee working for them for the duration of their notice period.
• The employer could refuse and hold the employee to his/her notice period If the employee insists on leaving with immediate effect, the employer could pursue a claim for breach of contract – though it is rare for employers to do this unless there is a case for the recouping of a financial loss.
• The employer could seek an injunction This would force the employment relationship to continue for the duration of the notice period, but most employers are unlikely to go to these lengths.
3. Can an employee resign before or during a disciplinary process?
This is quite a common situation, particularly where an employee is facing disciplinary allegations that may lead to dismissal. Resigning before an outcome would avoid having a (potentially gross) misconduct dismissal on their record. If the resignation is with immediate effect then the rules outlined above apply. In this situation, though, it’s likely that an employer would be prepared to accept an immediate resignation – not least because it avoids the need to dismiss the employee. If the employee resigns with notice, then the employer has the right to continue the discipline process, which may result in the employee’s earlier dismissal. If an allegation is likely to be passed on to Ofsted should it be proven, this may affect the decision to allow the resignation. Best practice encourages the employer to inform the employee that despite having accepted his or her resignation during the disciplinary process, they reserve the right to continue with any investigation that may have commenced.
The employer would then ensure there were notes on file from the investigation, in case they are subsequently called upon to defend any constructive unfair dismissal claim at a later date.
4. Can an employee withdraw their resignation?
Once an employee has given the proper notice, it is effective and can only be withdrawn if the employer agrees. There are always exceptions, though; the final decision rests with the employer.
5. What if the employee resigns ‘in the heat of the moment’? Case law has developed a limited exception to the rule that an employee cannot withdraw his/her resignation if notice has been given. This generally applies to cases where an employee resigns in anger during an argument or while under an unusual amount of pressure. In such cases, employers are expected to give the employee a reasonable amount of time (up to a couple of days) to calm down and reconsider whether they wish to continue with their resignation. Failing to do so and treating the employee as if they have resigned could ultimately result in a finding at the Employment Tribunal of unfair dismissal, due there not having been a valid resignation. Instead, the actions of the employer could be found to amount to a dismissal. It’s therefore worth following up on any surprise resignations to make sure the employee really does mean what he or she might have previously said…
Vicky Stanton is the director of HR 4 Your Nursery and has recently launched HR Hub – an online one-stop shop for all your people resources needs, including contracts, letters and policies. To find out more, visit vickystanton.sendmedetails.com/teach-early-years
