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Employment Law Services Ltd

Resignation

Under the Employment Rights Act 1996 employers are required to give details on notice requirements in the written contract of employment &  (see PAYG contract of Employment). This should specify how much notice the employee must give to the employer. Obviously the more senior the employee; the longer the notice period should be. Similarly if it is likely to be difficult to recruit a replacement the employee should be required to give a long period of notice.

Normally it is easy to tell when an employee intends to or has resigned, but written notice should always be required. However the question of whether an employee actually resigned or was dismissed has often been argued in the employment tribunals. The reason is that in order for an individual to win a claim of unfair dismissal he/she must establish that he/she was dismissed rather than resigned.

Turning a Resignation into a Dismissal

If the employer terminates the employment during the notice period, for example, the resignation will become a dismissal.

Forced Resignation

Any apparent resignation that was induced by any threat, or through duress, such as the employer saying “resign or you’ll be fired”, is really a dismissal. Furthermore, it is likely to be an unfair dismissal.

Ambiguous Words

Sometimes the words used by the employer or employee may be ambiguous, causing doubt as whether there was a dismissal or a resignation. For example, if an employer says “get out”, or “leave now”, or “you are finished”, the question is whether the words are meant as a dismissal or simply a temporary instruction. Similarly, if an employee leaves the work place shouting “I’m off” or “that’s it, I’m leaving” without expressly making it clear these words could be indicative of a permanent intention to leave- a resignation- or simply a temporary move.

 

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