Walking Out

On Friday morning I got a call, well… more of a spoiler actually!

It was a researcher from the JVS show on BBC Three Counties Radio –

“Following Aleksandra King’s shock departure from The Apprentice last night, we’d like to interview you about people who walk out of jobs with no notice”

Me: “Thanks for that, I haven’t watched it yet”

Anyway, with my normal professionalism, I then proceeded to discuss the reasons why people leave a job without giving notice and what (if anything) you can / should / could do about it.

Here are the headlines:

People will leave a job with immediate effect if:

• They (or an immediate family member) have an illness which needs the employee’s time and energy –

  • In this instance there is not a lot that you should do, except offer support and, depending on circumstances, flexibility.
  • If they are a long standing member of staff with an elderly sick parent, you may be able to find a mutually beneficial arrangement which doesn’t lose you all that expertise in a matter of minutes.

• They have a new job starting on Monday morning –

  • Check their contract of employment (if they don’t have one…. Why not?).
  • Specifically look at their notice periods and restrictive covenants – are they in breach of contract?
  • Do you have any financial penalties in the event that they breach their contract?
    • If not, it is a bit late now, but learn this lesson for future.
    • If you do, now is the time to decide whether you want to enforce the contract.
    • You may need a solicitor to help you do so, but take a quick decision and get some advice immediately

• They are planning on taking you to an employment tribunal and the working environment has become so ‘untenable’ that they are resigning with immediate effect and claiming constructive dismissal –

  • Now it’s a bit more complicated than this, but if an employee has taken advice and they have been advised to take a constructive dismissal claim, they may well walk out without giving you any notice.
    • If you think that this is a possibility, perhaps because you were aware that the employee was unhappy or there were issues – be very careful with your next step and ensure that you get advice. You need to be able to defend yourself in an employment tribunal if this is the plan

• They just can’t take IT any more –

  • You may never know what IT is, but it could be the journey, their boss, their colleagues, the work, their clients or any number of other things.
  • Some people will not fight, not say a word, just walk away and move on to other, ‘better’ things.

In all cases, you will not need to pay notice pay as it is them who has failed to provide you with the appropriate notice. However, you cannot deduct any pay due (hours worked or accrued untaken holiday), unless your contract gives you express legal permission to do so. For this reason some people will chose to walk out just after pay day or just after a bonus or commission payment.

At this point I’m going to let you in on a secret!

The Contract of Employment is essential, it is your bible, it is your how to guide, it is your obligations towards your employees and their obligations towards you…… However, it is not worth the paper it is written on unless you are prepared to enforce it!

If you, as the employer, breach the contract of employment, you can legitimately find yourself defending your actions in an Employment Tribunal. However, if the employee breaches their contract of employment there is very little you can do. If they are still employed, you can of course discipline them. But, if they have walked out without giving you notice, or they go to work for the competition or they poach staff and / or clients …. there is no Employment Tribunal for you the employer to go to. You would have to take them to court for breach of contract! Fair… No! The way it is….. Yes!, Stressful…. Yes!, Expensive…. Probably!

At DOHR, we have a slight work around which we are beginning to use for some clients, but ultimately this element of employment law is heavily weighted in favour of the employee – so be aware.

If you want to know how we can rewrite your contracts to afford you greater protection, get in touch with us now on 01923 504100.