Considerations When An Employee Resigns Amidst Employment Issues

During an employment or disciplinary process, we occasionally see employees tendering their resignation.  The first instinct of a busy employer is to rush to accept this resignation, assuming this means the matter is resolved.  However, this can create risk for the employer and we recommend that employers seek legal advice before rushing to accept. 

In this article, we look into the risks associated with accepting the resignation at face value and how to mitigate these risks.

The Warning Signs

When an employee tenders their resignation amidst a disciplinary or other employment process, it is important to consider the resignation in context. 

Of course, it is not always the case, however there could be alarm bells ringing that the employee is gearing up to raise a personal grievance on the grounds of constructive dismissal.

The content of the resignation letter gives the best indicator as to the employee’s intention.  To meet the grounds of constructive dismissal, an employee could argue any or all of the below:

• They had no option but to resign
• They are resigning as a result of the employer’s actions or pressure
• They consider the employer will decide to terminate their employment anyway, so the employee is getting in there first
• The work environment was bad, or they will refer to recent events and/or a diminution in the employee/employer relationship. A common phrase we see is – “it is in everyone’s best interest for me to leave”

If you receive a letter with the warning signs, ensure you do not agree with the contents and do not accept it immediately.  Ensure you encourage the employee to think about their decision further, and advise that you are available to discuss any concerns of points they have raised.  If the employee still feels the same way later, then you can look into next steps.

What Next?

It is still possible to accept the resignation. 

Ensure you act in good faith and address the employee’s concerns and engage with them about it.  This could be penning an acceptance letter that acknowledges the employee’s concerns, but does not agree with them.  This looks like the following:

• Acknowledge the employee’s decision to resign
• Respectfully disagree with claims they make (e.g. you have pressured me) and explain why
• Recap any discussions held with them that are relevant and dispel their claims
• Express gratitude for their hard work and wish them well

The key is ensuring that any other options are clearly open to them for consideration, before resignation is confirmed.

If the employee has tendered their resignation in the middle of a disciplinary process, it is possible to advise that you will not be accepting the resignation as there is a disciplinary process afoot.  As these matters fall heavily on the facts, we recommend reaching out to a lawyer to discuss options to fit your bespoke situation and reduce your risk.

Employment law assistance

Our Workplace Law Team is able to assist with all employment questions/pātai that you may have. 

Chantelle is a Senior Solicitor in our Workplace Law Team and can be contacted on 07 958 7473.