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Resigned to resignation – why departing employees can be a worry for businesses

Christopher Saunders - DAS Law

  1. 02 February 2015
  2. Business
  3. 0 comments
Stressed woman at work

We’re all familiar with the image of an upset employee collecting their belongings from their desk, walking away from the office and duly informing senior management, “I resign!”

But how do employees end up in a situation where they feel that this is their best and only option? Naturally, for an employee to reach this stage and subsequently react in this way, they must also have an underlying level of discontentment with their employment relationship.

Often this can be down to workplace bullying, or disciplinary action or sanctions which the employee feels are unmerited or ‘heavy-handed’. Sometimes it may simply come down to a clash of personalities with a particular colleague.

Regardless of the reason for the employee’s departure, however, this sort of scenario often prompts employers to swiftly seek legal advice from their employment lawyer or HR department. But why?

The employment relationship

Quite simply, an employment relationship is a contract. The core of this agreement is that the employee agrees to perform work and the employer agrees to pay them for their service. In addition to this, there will be a whole host of written (“express”) terms, such as the level of pay, the extent of holiday or sickness entitlement and whether the employee is restricted to act in a certain way.

However, in the background, there are also unwritten and unspoken (“implied”) terms which play a part in dictating how the relationship should be managed and operate in practice. For example, in every employment relationship, it is an implied term that an employer will provide a safe working environment for their employees, free from unnecessary health risks or even acts of bullying.

If the employer does not comply with these duties, then in certain circumstances, and subject to the severity of the problems, an employee may claim that the company has committed a “fundamental breach” of the contract.

If an employee alleges that they have been bullied, either by a colleague or management, and the company has taken no steps to prevent this, a distressed worker may contend that the employer has committed a fundamental breach of the contract.

If the employee chooses as a result of this breach to resign, they may then choose to bring a claim against their former employer for ‘constructive dismissal’ – the term used to describe a situation where an employee’s work situation has become so intolerable they feel as though they have no choice but to quit.

To succeed in this claim, an employee must demonstrate that there has indeed been a fundamental breach of the contract, show that they had no alternative but to resign in the face of this breach, and prove that their resignation was tendered swiftly and without unreasonable delay.

Typically, in a claim for constructive dismissal, an employee will resign with immediate effect. Their claim will often therefore comprise a claim for damages for the loss of the notice period (the amount of notice that an employer would have to give to bring the contract to an end). Further, if an employee has been employed for over two years, they may also be able to bring a claim for unfair dismissal if they can show that the employer has treated them unfairly.

A claim for unfair dismissal can be quite costly for an employer, not just financially but also in terms of the hit they may take to their reputation. It is recommended that advice is taken on this subject if it should arise, as the area is technically challenging and fraught with difficulties.

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