IN the current climate this is less likely to happen as many employees know how difficult the current employment market is and how difficult it is to find another job.
Many people are reluctant to move from a position which they have held for some time to something new and unknown, thinking that even if they are made redundant from their existing post they may at least be entitled to some redundancy pay.
We are in difficult times at present and it is not easy for employers who are trying to manage difficult situations and at times implement tough measures such as reducing working hours and pay which have a direct impact on individuals.
Such measures need to be handled carefully as getting things wrong can result in an employee walking out.
Constructive dismissal occurs when an employee resigns in response to a fundamental breach of the employment contract by the employer.
Although the employee has resigned, the situation is treated as a dismissal.
In order to bring a claim of constructive dismissal to an Employment Tribunal, the employee must have at least one year’s continuous service which will increase to two years from the April 6, 2012, for employees commencing employment on or after this date.
Where an employee does walk out or resigns in the heat of the moment the employer needs to consider the circumstances surrounding this.
If the employee has less than one year’s service, the employer should not automatically assume that the individual does not have sufficient service to lodge a tribunal claim and should consider whether there is a risk of some other claim with no service requirement, such as discrimination.
If an employee walks out the first step is to contact them to establish the reason for their sudden department.
This can be done by telephone and if this is not possible a letter can be sent asking the person to get in touch in order to discuss the circumstances. The employer should be prepared to send more than one letter.
In an example from the past, an employer was faced with an employee refusing to carry out a particular task. The employer asked again and after the employee had refused a couple of times the situation became quite heated and culminated in the employee telling the employer what he could do with his job.
This was an employee with several years’ service and an unblemished record and it was the first time he had been asked to do this particular task.
Some time later, the employee returned to the workplace to explain his reason for refusing the request and this had been because the task would have aggravated the employee’s health condition but the employer refused to listen.
The situation was subsequently resolved in an Employment Tribunal with a claim for constructive dismissal and disability discrimination.
We all benefit from hindsight and it can be very easy to react to a situation, particularly if a task needs to be completed quickly or within a deadline and it is sometimes difficult to step back from the situation, take a deep breath and investigate.
If faced with a resignation in response to something the employer has done, the employer needs to consider the timescale. How soon after the event did the employee resign?
If the employee waits too long before resigning in response to the employer’s actions, such as a change in working hours, the employer could argue that the changes had been accepted. An employee needs to have acted fairly swiftly in responding to the employer.
Alternatively, there may be a series of events which lead to the resignation with the final event being regarded as the final straw.
The employer also needs to consider if there were any other reasons for the employee’s resignation, for example, did the employee have another job to go to?
Employment has evolved over the years and as any employer knows there has been a vast increase in legislation together with a change in the way in which employers and employees work together.
Employers need to act carefully and treat employees fairly and consult with employees prior to making any changes which should be for business reasons.
l Work Smart is a project which works with employers across Hartlepool by providing support as well as seminars and an accredited course in People Management.
If you are an employer and would like further information, contact Sheila Watson on (01429) 284305.