FAQs

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!

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

Why do I need to allow a resignation cooling off period for an employee?

It may seem pointless to allow a resignation cooling off period when an employee announces their resignation to your face – especially if you don’t particularly want them to stay either. But it’s much better to do so than to not.

An employee can resign unilaterally, i.e. you do not need as an employer to “accept” their resignation for it to be valid.

However the basic position is that the employee does not have the right to unilaterally take back their resignation. This is because it is now a “request to be employed” which both parties must want.

You can consider their request, and may allow them to retract, but you can also continue to “accept” it and the employee has to deal with the consequences of their actions.

If the resignation was made in the heat of the moment, then you should give the situation a couple of days to cool off. Then make a final decision as to whether the employee really meant to resign or not.

If you do not allow a cooling-off period and immediately accept a resignation made in these circumstances, then a tribunal may decide that the employee did not in fact resign, but was dismissed.

This is only the case for spur of the moment resignations; normal resignations can be “accepted” immediately.

If you are actually relieved that the employee has resigned, and it is no “heat of the moment” resignation, you are free to accept the resignation and breathe a sigh of relief!

“Gap HR Services proactively help us implement employment law to protect our business. Carolyne regularly keeps us updated on any changes that could affect us. She is also always available to come in and help with recruiting new staff, as well as disciplinaries, etc.
Gap HR offers us an individual and personal service which sets them apart from the generic legal advice lines out there.” Chris Brownlee, Managing Director, Worknet

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Yes! If you employ anyone, be it a nanny, receptionist, or sales person means that you have responsibilities under employment law.

As is usual in law, ignorance is not a defence and will not protect you!

You don’t need to pay redundancy to staff who have worked less than two years for you. You will obviously have to pay them their notice period.

You do need to pay redundancy to staff who have worked for you for more than two years. Statutory redundancy pay is currently max £538 for every completed year’s service. You will have to pay them their notice period.

In addition, you will have to follow a fair and reasonable consultation process. This needs to be at least 3 weeks long.

Example redundancy pay:

Sarah has worked for you for 5 years. Her notice period is one week for every completed year of service. Her weekly pay is £600. You would start the redundancy consultation process. You would pay her and she would work for those weeks, as usual. Then you would terminate her employment. You would give her 5 weeks x £600 notice pay (subject to tax and NI) and 5 x £538 redundancy pay (week’s pay capped at £538, paid gross). We have a more in-depth guide on this, which you can view here

If you have any other questions about redundancy, please visit our redundancy page. Here is what gov.uk says about redundancy pay.

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The short answer is “No”, you cannot stop an employees working for competitors for 12 months.

The usual way of trying to do this is by putting a restrictive covenant into the contract. That means that you put a noncompete clause in, making it clear that they are not to compete with you after leaving. However you need to be careful about the length of time you try to do this for.

The courts are not happy at any attempt to prevent someone from earning “an honest wage”, even if it is for one of your competitors.

You need to work out whether there really would be a detriment to your business if someone set up in competition or went to a competitor – your customers are loyal, aren’t they? It’s not so good when the ex employee steals your staff, but then again, why were the staff interested in leaving?

A realistic time period for restricting activities is generally 6 months. Any longer and you take the risk of the court throwing the whole clause out and there being NO restriction at all. As we live in a free-market economy, it is increasingly unlikely that the courts will continue to enforce non-competition clauses, and this will be restricted to highly specialised or niche professions. Although, that said, I can’t think what would be so specialised that it would warrant, outside of the Official Secrets Act and the professions covered by that, any ex-employee being prevented from exercising their right to earn a living.

The courts also tend to take the view that very senior management and specialists (pharmaceutical industry?) are the only ones who could possibly damage your business, and don’t look kindly on you trying to restrict your marketing assistant from working for a competitor.

As with anything legal, think about whether you would even enforce it. If not, then you might as well leave it out of the contract.

“Being able to call Gap HR and get an answer is priceless – great peace of mind!” Sue Dally, Finance Director, Ace4Kebabs

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No, is the quick answer to that. In the first month of employment, notice can be immediate on both sides.

Their notice period

After the first month it has to increase to one week on both sides. You can keep the notice period at one week for the first year, or after the probationary period increase it to one month, but the statutory notice periods will always override what has been written in the contract, unless it is a longer notice period.

The statutory minimum for EMPLOYERS to give EMPLOYEES is one week’s notice for every full year worked up to 12 weeks notice (i.e. after 12 years). If you have agreed a longer notice period due to the seniority/importance of the role concerned, that will apply. It still needs to be longer than the statutory minimum. This is really important to bear in mind when making staff redundant.

The statutory minimum notice for EMPLOYEES to give is only one week, no matter how long their service in your company. They may choose to give you more notice, but they are not obliged to. So unless you have a different notice period agreed in your contract of employment, then someone who has been with you for 8 years could, with accrued holiday entitlement of 5 days, leave their work place immediately they have given notice – what would you do in that situation?!

Make sure you have longer notice periods in your contracts otherwise after 8 years they could walk out only giving you one week’s notice.

Unsure about if you are able to make an employee work their notice period? Read this post to find out! Alternatively, you can visit the blogs section of our website to read more about HR.

To read more about what the government says about notice periods, click here.

“We have recently worked with Gap HR to ensure we’re fully compliant with all our employee contracts and handbook, and what we thought was going to be a hard, and laborious task, was in fact, an easy and very pleasant experience. Our main contact Cathy was a delight to work with, as were all our experiences with the team at Gap HR. We plan on outsourcing all our HR now, and would thoroughly recommend Gap HR to others.” – Steven Barton, Director, Purely Air Tech

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