My employee resigned, but now she is suing me for unfair dismissal

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The employee had resigned, and then said that as she was intending to move up north, and things hadn’t been finalised, could she stay on till the end of term (this was in a preschool). My client agreed (this was before I was advising her, I hasten to add) because she was having trouble finding a replacement.

This continued for the next year. The employee kept saying she was leaving, even had a leaving party that all the parents came to, but kept delaying because her house wasn’t ready or she didn’t want to move her son before the end of the school year.

Not yet gone employee came back in September (another agreed extension till half term) and my client had found a replacement to take over. The not yet gone employee then goes to the doctor and comes back after 3 days and says “I’m not going anywhere, I’m pregnant, I know my rights, and I am staying!”.

This is when the preschool owner came to me. We refused to accept her withdrawal of resignation and managed her out of the school. She came back with an ET1 form (which we knew she was going to) and the solicitors took over. This case went all the way to tribunal, where it was thrown out by the judge saying it was obvious that she had resigned and that she was just after extra money!

So if anyone asks if they can stay on a bit longer, to be honest, don’t let them – do you really know what their agenda is?! They might sue for unfair dismissal

When your employee resigns

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This might be a relief or a pain in the neck.

For a resignation to be valid, it needs to be in writing.

If the resignation is straightforward, with just “I am hereby giving you notice”, then you just need to

– acknowledge the resignation.
– work out their last working day. Do you want them to work their notice? You decide – but either way you will have to pay them.
- Exception: if they storm out in a huff, refusing to work
– are they owed any holiday? If so, could they take it in the notice period? Then it is less for you to pay out.
– letting everyone (who needs to know) know that this person is leaving. Agree with them the official reason that they will tell everyone.
– starting the recruitment to find a replacement!

But what if it isn’t straightforward? Take a look at our other FAQs on resignation:

Resigned but now taking it back

Employee resigned, but is now suing me for unfair dismissal!

What is a CRB check? How do I get CRB checks for my employees?

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It really depends on what job you are recruiting for. If you are making them complete a CRB check in the first place, then we can assume that it is necessary, or a legal requirement for the job. Why else would you go through the hassle of getting one done?

What is a CRB check for? To check whether potential employees have criminal convictions. Especially if they are working with children and vulnerable adults, if they have any record of abuse in that area. Also if they would be handling large sums of money for your organisation, CRB information will let you know if they have been honest – to date at least.

So if there is a legal requirement to have one, if it comes back with convictions on it, you have to decide how relevant they are to the job you would be asking them to do. If they have a conviction for drunk driving, are you asking them to drive as part of the job? Are they perfect apart from that? You could give them the chance, as the incident itself may be a few years back, different life circumstances, etc.

The short answer is that if it is a legal requirement that your staff have CRB checks, then if it comes back “not clear” then you are allowed to reject them for that reason. The “clear” CRB is usually a legal requirement when working with children and vulnerable adults.

If a CRB is not a legal requirement, then you need to be “reasonable” and decide whether the CRB information regarding their offence is going to be a problem in the job you are asksing them to do. E.g. a bookkeeper convicted for drunk driving is not so much as a problem as one convicted of petty theft/embezzlement

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My employees can’t get into work due to the snow – do I have to pay them?

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The short answer is “No”. There is no legal right to be paid for not working! However, you may want to offer the following options:

that they use their holiday entitlement instead
that they work from home – but this obviously will only work if they have remote access to your servers and have a job that is possible to do from home. A receptionist can hardly greet visitors from her living room (although she could probably answer the phones)
have it as unpaid leave.

Depending on the situation, you would not normally start a disciplinary process because of the absence. However what if everyone else has made it in even with some snow? Do they live in the back of beyond? You might want to question them as to why exactly only they aren’t able to be in the office.

One of my clients had the situation of not snow, but an employee’s broken car “which I can’t afford to get fixed”. So the employee wanted to work for the next two weeks from home, when most of her work activities required her to be in the office. As she was leaving anyway, we then agreed with her that she would finish her employment early and move on to her next job. Employees often find a way to return to work very quickly once they realise they aren’t being paid.

To recap, employees only get paid (i.e. have a legal right to be paid) for absence if:

it is approved holiday absence,
sickness absence (SSP minimum),
maternity leave, or
paternity leave.

“Gap HR Services delivers the “Ronseal Appeal” – they do exactly what they say on the tin – prevent issues and give you peace of mind!” Terran Churcher, Finance Director, Codegate Ltd

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Will A Pregnant Employee Be Off For 15 Months?

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Maternity Pay And Leave – Maternity Rights for Employees

A pregnant employee is entitled to 52 weeks maternity leave in the UK. She also has the right to return to a comparable job on similar terms and conditions if she takes the full time off.

She is currently paid at 90% of her normal earnings for the first 6 weeks. After that she gets the maternity pay rate of £136.78 per week up to 39 weeks. From 39 to 52 weeks maternity leave is unpaid. If you are a small employer, with NI contributions below a certain level, all the maternity pay can be reclaimed at 105% from the government – ask your accountant how to do this.

It is a popular misconception that the employee can then take parental leave of 13 weeks immediately after her maternity leave. There is a right to parental leave of 13 weeks (unpaid) for all parents with children up to 18 years of age. However, the statutory maximum that can be taken at any one time is 4 weeks. Employees have to give 21 days notice. The employer can postpone it up to 6 months if the business operations would be disrupted.

Unless you have your own policy which allows employees to take 13 weeks all at once – why would you? – the maximum the employee could take in this case would be 4 weeks, and you would still have the option to defer.

You can set your own rules on how these thirteen weeks can be taken. You can decide

whether this can be taken in odd days,
as one long block,
or even as reduced working hours;
how much notice of parental leave must be given,
and what the arrangements are for postponing parental leave.

Your own rules do, as with employment contracts, have to be more than the statutory minimum. If they are not, the statutory rules will apply and overrule anything you think you have agreed.

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How much bank holiday entitlement do my employees get?

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“It depends” is the short answer.

An employee’s statutory holiday entitlement in any year is 28 days. Those days can be any days in the calendar year.

However most employers have found it easier to give their employees their holiday entitlement by including the bank holidays in the 28 days holiday. This makes perfect business sense, as your staff are (usually) off work anyway, so why pay them to take more time off?

The normal bank holiday entitlement is 8 days a year. Unlike other European countries (e.g. Germany) we don’t have very many public holidays each year.

However in 2011 and 2012 there were extra bank holidays and the question was asked “How many bank holidays do I actually have to pay my staff for?”.

This depends on what bank holiday entitlement clause you have in your contract (if you don’t have a written contract of employment, get one NOW)

Most of our clients have the clause in their contract “You will be paid for 8 bank holidays a year.” However you can be more generous and say “You will be paid for all bank holidays in a year” which will then cover any additional ones we get.