Ask Us – Has he resigned?
A member of staff that has previously received a verbal and then a written warning for going AWOL has now ceased to come to work. We have not had a letter of resignation but he did text another of our employees saying he has given up but also saying that we set him up for a fall.
He has returned his work van along with other work possessions but has not provided a resignation letter. His contract states a month’s notice is required. What can we do so we don’t end up at Tribunal please?
Hello and thanks for your enquiry.
I can see this is a worry for you, but there are some steps you can take to proactively address the situation and reduce your chances of a successful employment tribunal claim against you. The points that you are rightly concerned about are that the employee is suggesting a potential constructive dismissal.
If the employee has less than two years’ service, he does not have sufficient time with you to claim constructive dismissal unless it could be demonstrated to be based on a discrimination reason (eg race, age, sex etc) or an automatically unfair reason such as making a whistleblowing disclosure or health and safety complaint.
If he does have sufficient service and he feels he has been ‘set up for a fall’ there could well be a claim for constructive dismissal. To mitigate this risk you should write to the employee an ask him to attend a meeting to discuss his employment. Explain that he is absent from work, you have not received any resignation and in any case, you would like a meeting to explore the circumstances of his absence.
At this meeting broach the text and ask him to explain his point. You may want to treat it as a grievance to demonstrate you are taking it seriously. If there is a case to answer, you can then address it.
It may be that you do not get a response. By writing to the employee you are documenting that you are making the effort to establish if there is any complaint. If there is no response, write out again, saying you have not had a response to your original letter, reiterate the need for a meeting and add if the employee has resigned to please formalise this in writing (the requirement to do so may be set out in the contract of employment or employee handbook). Send this letter by recorded delivery.
If the employee provides a resignation letter, you may mutually agree to waive the notice period – acknowledge the resignation and waiver of notice period in writing if this is the case. If it is not agreed and you do not pay in lieu of notice, the employee could have a claim for wrongful dismissal.
If there is still no response, you can then invoke the AWOL process (see our separate process) which enables you to terminate the employment if there is no contact.
Double check you have the most up to date address for the employee, and back up letters with emails too if you have an email address. By following this process you are demonstrating that you are not making assumptions about the employee’s absence, investigating concerns that the employee may want to raise and providing the opportunity for 2 way dialogue before possibly ultimately terminating the contract of employment.
I hope this puts your mind at rest a little. Do get in touch if you need any letters drafting or scripts for meetings. Good luck!
