An employee resigns verbally but refuses to put it into writing until he has secured another job. What can HR do about it? Martin Brewer, partner and employment law specialist at Mills and Reeve, and Esther Smith, partner at Thomas Eggar, explain.
The question:
I have a member of staff whose review came in a month ago and he advised me verbally that he will be resigning from his job because the experience he is acquiring from his existing job is inadequate for him in advancing his career.
I have made it clear that as per the terms of the contract he has to give me a month’s notice, albeit the contract does not specify whether the notice has to be in writing or can be verbal.
I have asked the staff in question to put it in writing, but he refuses to do so and advises me that he will only put it in writing when he secures a new job.
No one has been a witness in our meeting to date and he refuses to discuss this matter in front of any other unbiased third party.
I have advised him that this is causing uncertainty in our planning as I cannot decide when to start looking for an alternative replacement. Furthermore, I can hardly trust this person any more.
I know that his chances of securing a new job are being hampered by one month’s notice on the contract so he is playing it safe at present.
My question is can how do I overcome this problem so that I am not seen to be dismissing this person unfairly and can get on with recruiting a new staff?
Jerry
The answers:
Martin Brewer, partner and employment law specialist, Mills and Reeve
Jerry, I wonder whether you are being a little over anxious about this as an issue. In the end, all employers face the prospect that staff may leave. In this case the employee happens to have mentioned this as a possibility, with no time scale and doesn’t seem to have made any real move to leave.
Assuming he is performing as required and not behaving badly, then I am just not sure what ‘problem’ there is to overcome. As I say, if you are concerned that because he said he may, in fact, leave then really he is in no different position to any other of your employees. It’s just that this one has, as it were, said it out loud.
Likewise I am just not clear why you say you cannot ‘trust this person any more’. The fact that he was prepared to have an open and frank (albeit confidential) discussion with you where he was clear about how he saw his future was surely an act which should engender greater trust. The fact that he refuses to have this conversation with others present is not so surprising. This is a personal matter, it’s not a conversation that needs to be had in public. It’s really nobody else’s business. In the end he could have not mentioned it to you and just left. If that had happened would you be in any better position?
I genuinely think that you should not be planning your business strategy around the possibility that any particular employee may/may not leave at any given point in time. If you do that then inertia will set in because, as I say, it’s in the nature of employment that staff can leave pretty much when they choose to.
Martin can be contacted at: martin.brewer@mills-reeve.com
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Esther Smith, partner, Thomas Eggar
This is a tricky area, as there is nothing in theory to prevent an employee looking for other work whilst engaged by someone else, and even if you know that they may be looking, you are limited in what you can do, which does give you planning issues going forward.
You are only likely to be able to fairly dismiss an employee in such circumstances if the employee has give what is referred to in case law as “an unequivocal intention” to resign. The fact that you find one employee preparing their CV or looking at recruitment websites is not enough to justify dismissal. In this situation you may have enough to show that there has been an unequivocal intention on the part of the employee to resign at some future point, although the employee appears to have been quite clever about what he has said and creating any witnesses to this. I suggest that you try to get some paper trail in place, by making full notes of your discussions with him, and if the meetings were relatively recent sending him copies of the notes so that he can agree their accuracy. You could also try writing to him either by letter or e-mail to confirm your discussions and state that he had indicated that he will be resigning in the future once he has secured another job. If he does not dispute this correspondence with you, it is helpful to rely on it in the future.
If you can get something in place to support your version of the meetings, you are in quite a good position to move to dismissal and defend any claim, based on the current case law in this area. You need to comply with the statutory procedures if you are going to terminate and it is always advisable to give the employee some notice of this by advising them that if they don’t secure other work and resign within say one month you will have no option to terminate their employment so that you can ensure the future running of the operation. There is always a risk that he will bring a claim but as mentioned on current case law if you can establish that he has given you an unequivocal intention of his resignation you should be in a good position to defend it.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar
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