Resignation or Dismissal?
by Liam
Whether an employee has resigned or has been dismissed affects whether an employee can claim unfair dismissal. If there is no dismissal, the employee can not claim unfair dismissal. Whether a dismissal has occured is therefore often an important point to be considered by Tribunals.
A resignation can be a dismissal (if the requirements of s.95(c) Employment Rights Act 1996 is satisfied, commonly known as a “constructive dismissal”), but is it possible that unilaterally requiring an employee not to work part of her notice period after she has resigned can amount to a dismissal?
The employment Tribunal in TOM FINDLAY & CO LTD v MRS M DEVLIN held that such a requirement could amount to a dismissal on the basis that the termination date had not been agreed because it had changed from the date specified in the employee’s resignation letter. This decision was overturned by the EAT. The EAT confirmed various well established principles - that an employee generally has no right to be given work, that a contract of employment can subsist while an employee does no work and that once a resignation has been given in accordance with an employee’s contract, the employee can not withdraw that resignation. Once Mrs Devlin had resigned, not requiring any work from her for part of her notice period did not change the date her employment ended. Neither did not requiring her to work change the cause of the termination of her employment - the termination was brought about by her resignation. Accordingly not requiring Mrs Devlin to work all her notice period did not amount to a dismissal.
Employers remain safe in putting their employees on garden leave! However, employers may wish to consider it could potentially be more tax efficient to pay employees in lieu of notice, but that’s a different issue.
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