We all know resignation is a method used by an employee, at their will, to terminate permanent contracts of employment. Consequently, an employee will not be regarded as having been dismissed. However, an employee is treated as dismissed if the employee terminates the contract due to the employer’s conduct and/ or a fundamental breach in the contract. This is known as Constructive Dismissal. The employer has simply constructed the employee’s dismissal by placing him in a position where he has no option but to resign.
In these circumstances, the employee can terminate the contract without notice; and provided the employee has worked for the employer for a minimum of two years, the employee can further bring a legal action against their employer.
What happens if your employer does not accept your resignation?
The position at common law is that a notice of resignation, once validly served is effective and cannot be ‘refused’ by the employer or ‘withdrawn’ by the employee, without the other’s agreement. This principle is underpinned by the US doctrine of employment-at-will.
The key point to remember is that the employee MUST resign immediately in response to their employer’s conduct. The employee must then seek legal advice as soon as possible, as the clock will be ticking and if the conduct took place more than 3 months ago, the employee is at the risk of being deemed as waivered his legal right to claim.
We would not advise you to resign, until advice is sought to determine whether the fundamental breach is enough to induce your resignation. If you would like to discuss your current situation give us a call on 0330 221 0684 or email us on [email protected].
Written by Anu Kaur Soni – Employment Law Paralegal at Kalra Legal Group.
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