Resignation

When you want to tell your employer you are leaving, your resignation can be either in writing or verbal. It is a clear statement to your employer that you are going to leave your job. Threatening to leave, or saying that you are looking for another job, isn’t the same as formally resigning.

Whether you are resigning on good terms or in response to how poorly you have been treated, the same principles apply.

How much notice do I need to give?

If you are resigning and thinking about bringing a constructive dismissal claim, most people don’t give any notice and leave with immediate effect. Talk to us for free on 08000 614 631 before you act. We’ll explain your options in confidence and without any obligation.

If you have never been told or the contract doesn’t mention it, then you will usually have to give the statutory minimum notice to your employer.  It is slightly different to the notice you are entitled to from your employer.

• Where you have been employed for less than one month you are not required to give any notice.
• Once you have worked a month, you must give 1 week’s notice.

Most employers will put in their contracts something to require you to give more than the statutory notice – typically three months, or they mirror the statutory notice you are required to receive from them.

You can give notice verbally but to avoid a dispute arising, it is better to put it in writing – an email will do.

How should I resign?

If you are resigning with immediate effect in protest at how you have been treated, a verbal resignation is enough, but it is better to put it in writing.

Most employment contracts will require you to resign in writing – so, your notice period will not start to run until you give your employer written notice. If you don’t have a contract, or the contract doesn’t mention how to give notice, you may give verbal or written notice.

When resigning, you should tell your employer how much notice you are giving and when your last day at work will be. If you are resigning following some unfair treatment and are considering bringing a claim against your employer for constructive dismissal, then what you write in your letter of resignation is very important. You should set out why you have resigned so that you can rely on it as evidence later on.

What if I want to leave earlier than I am supposed to?

More often than not this is because you have found a new job and you want to start  before your notice period expires.

If you want to leave before the end of your contractual notice, you can.  Your employer could accept your resignation with an early leaving date. It might actually suit them, but there is realistically not much your employer can do about it if you leave early.

Your employer could refuse to accept your immediate resignation, and seek an injunction from the courts to enforce the employment relationship to continue for the duration of the notice period. They can’t force you to work for them, but they might be able to prevent you from working for someone else until your notice expires.  Whilst most employers are unlikely to go to such lengths, this is a useful tactic for them to take, especially towards senior employees who have the potential to cause significant disruption. Often, the mere threat of an injunction may be enough to dissuade a departing employee from leaving early and breaching their contract.

In theory, you could be sued by your old employer for the costs they have incurred because of your breach of contract – but it is very rare. They might want to claim the cost of a replacement member of staff for the balance of your notice period. In the most serious cases, a claim be made for business your employer lost because you left early. These claims are very rare and likely to only be brought against very senior employees.

Some employers will try to withhold your final pay because you didn’t give the right notice to leave. If this happens, call us today for free on 08000 614 631 and we will be able to tell you what you are entitled to, in confidence and without obligation.

Sometimes you have no alternative but to not work your notice. Your working conditions could be intolerable, and you resign with immediate effect in protest. We see many constructive dismissal claims. It is rare for someone to have worked their notice if they are claiming they have been bullied out of their job or discriminated against.

Can I be put on garden leave once I have resigned?

Yes. You may be asked not to attend work during your notice period, even though you continue to be paid. This is known as ‘garden leave’ and you are expected to stay away from work and not start new employment for the balance of your notice. You remain employed and continue to be subject to the terms of your employment contract such as confidentiality. You may be obliged to return work for all or some of the garden leave period at your employer’s request – usually to assist with a hand-over of work.

Whilst you are on garden leave, you will be entitled to full pay and company benefits, including bonuses. However, you may be required to take any outstanding annual leave during your notice period. Your employer can request you refrain from getting in touch with their clients, customers, suppliers, or contacts without their prior consent.

Garden leave is popular with many businesses – especially when employing senior executives with important client contacts and confidential information. Putting you on garden leave  keeps you a safe distance from your employer’s clients.

What is Pay in Lieu of Notice (or ‘PILON’)?

This is where you are paid for your notice without having to work it. This is often referred to as ‘PILON’. Most employment contracts contain a PILON clause.

Your contract may also say that you are not entitled to be paid for benefits such as car allowance, pension, or private health insurance when you are paid in lieu of notice. In other words, you receive just your basic salary. You would usually pay PAYE and National Insurance on your notice pay.

Where you have no PILON clause in your contract but your employer decides nevertheless to pay you in lieu, they are technically in breach of contract. They should include all the other benefits that you would have received during the notice period, such as pension rights, health cover and holiday pay, to put you in the same position that you would have been in if you had worked your notice. Some of the payments would not be subject to tax and National Insurance.

If you have restrictive covenants in your contract of employment, and your employer pays you in lieu of notice without having that right in the contract, you may be able to claim the restrictions on you don’t apply. You should take expert legal advice first before relying on this.

I am being disciplined, can I still resign?

You can resign whenever you want to. Many employees think about leaving when faced with a disciplinary allegation rather than be dismissed. There are good reasons to leave – and to stay. Tactics are important, and you should take legal advice before you make your decision.  Call us today for free on 08000 614 631 and we will be able to tell you what you are entitled to, in confidence and without obligation.

Resigning first could be seen to be an admission of your guilt. At the same time, it could also weaken any subsequent Employment Tribunal claim you wish to make, and could negatively affect your job reference. Your employer could easily say you resigned before they had an opportunity to hear your side of the allegation and would not necessarily have dismissed you.

You also need to consider that if you resign on notice, your employer could continue the disciplinary process during your notice period, and still dismiss you for gross misconduct. The dismissal would then supersede your resignation.

If the allegations against you are totally without substance, you may be able to argue that your employer has made your position untenable whatever the outcome of the disciplinary process. In this scenario, you would be claiming that you have been ‘constructively dismissed’, and you would be resigning with immediate effect – without notice. You would then have a right to make a claim for constructive dismissal.

If you decide to ride out the disciplinary process which results in your dismissal, your ability to find new employment is likely to be affected. This is why it is far better to see if a negotiated exit can be found with your employer, which allows you to leave with your record intact – and which provides you with a job reference to take to your new employers. A negotiated exit through a Settlement Agreement with your employer is by far the best route to take. We can help negotiate an exit for you.

I have changed my mind. Can I withdraw my resignation?

Generally, no. Once you have given notice, it can only be withdrawn if your employer agrees.

If you resigned in the heat of the moment, a withdrawal may be possible if you retract it very quickly. Your employer would be expected to give you a ‘cooling off’ period to reconsider whether you really do want to go ahead with the resignation. Ideally a withdrawal should be done the same day or within a very short space of time – certainly no longer than a few days.

If your employer refuses to accept your prompt withdrawal, you may have a case for unfair dismissal.  The case being your employer’s refusal was unreasonable. A Tribunal would look at the facts and ask what a reasonable employer would have understood the actual words to mean.

Can I take holiday during my notice period once I have resigned?

Yes, but your employer is entitled to refuse the holiday request. If you booked annual leave prior to resigning, and the holiday falls during your notice period, your employer should permit you to take the holiday unless there are compelling reasons to refuse.

Your employer may insist you take your unused annual leave during your notice period – if your employment contract allows it. Even if your contract does not include permission, your employer may still ask you to take accrued holiday. You would need to be given notice by your employer – usually twice the amount of holiday they wanted you to take. For example, if you have 5 days’ accrued holiday remaining, your employer needs to give you 10 days’ notice.

What if I am too ill to work my notice?

You can be off sick and you will still be entitled to receive your normal pay, contractual sick pay or SSP, unless you have exhausted it.

Will I receive my full notice pay if I resign when I am off work ill?

It depends on what your notice period is. Call us today for free on 08000 614 631 and we will be able to tell you what you are entitled to, in confidence and without obligation.

Will I lose my right to a redundancy pay if I resign before the process has completed?

Yes. If you have not yet been made redundant and you resign beforehand, then you would not be entitled to receive your Statutory Redundancy Pay.

I am leaving. What else do I need to consider?

Many contracts contain restrictive covenants – clauses that try to limit what you do and where you can work, including what clients you can or cannot take with you. Ideally, you should check your contract of employment before resigning. Call us today for free on 08000 614 631 and we will be able to tell you what your options are, in confidence and without obligation.

Once you have resigned, make sure you understand the bonus provisions in your employment contract, as many will state that you are not entitled to a bonus unless you are still employed at the ‘bonus payment date’.

Do not be tempted to copy  your employer’s files and data or send it to your personal email. You may think that it is harmless to transfer files that you are working on during your notice period (such as client lists) but your employer will likely think it suspicious. They may well be monitoring your activity. We have seen many people being disciplined during their notice period for breaching the confidentiality provisions in their contract which can lead to dismissal for gross misconduct, or the threat of legal action for breaching post-employment restrictions.

What do I do now?

This is where we come in. Employment law is all we do.

You need the best support and advice available.  You need a specialist employment lawyer – one who will push for all the money you are owed.

We understand how it feels. We have helped hundreds of employees and because we act for businesses too, we know the tactics you’re likely to face from your employer.

We will advise you of your options and how best to proceed to get you your money as quickly and cheaply as possible.

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