From time to time we get a call from a retained client that an employee has walked off the premises, often after an incident or what we technically describe in the office as a ‘right ol’ ding dong’.
Whilst wherever this occurs this will be an issue, in Early Years an employee leaving the building before the conclusion of their shift is going to possibly put the Nursery out of ratio and leave children unsafeguarded. Serious misconduct on the part of the employee.
When we hear of these situations we always ask how long the employee has been employed? What do we know of the reasons behind the behaviour (ill health, stress, unresolved grievances etc?) and how old is the employee? We do know that immaturity and other age related circumstances can result in someone behaving in a way inconsistent with their responsibilities.
We ask this as Employment Tribunals have previously seen special circumstances from what others would see as unambiguous phrases like “I won’t be back” and “I quit”. They have resolved that that management may have contributed to the employee’s sudden resignation, perhaps an aggressive altercation with an Owner, or an employee experiencing a period of extreme stress. In some circumstances the immediate acceptance of the heat of the moment resignation has led to a tribunal concluding that an employee did not resign but was dismissed by the employer.
Sometimes when they leave in addition to the departure we hear that the language was ‘choice’ and the doors may need new hinges. We’ve also known for an employer to be shocked by the reckless driving and endangerment to car park users as the employee drove off at speed.
Not always does the employee add “You won’t see me again, I’m done!”. We’ve known them to clear their locker as they departure which would be suggestive of someone who is not intending to come back. Not even for their personal property.
With all this in mind what we want you to bear in mind is that despite what the employee may have said at the time, it could be dangerous for you to conclude that she meant what she said “in the heat of the moment”.
A ‘heat of the moment’ resignation may mean that the contract has ended, but it may not.
Remember if the employee has at least two years’ continuous service with you she could claim unfair dismissal at the employment tribunal. This would be her claiming constructive dismissal and that your actions have led to her leaving in this way.
The best response is to have a “cooling off” period and then, if possible, to contact the employee and establish whether or not he actually meant to resign and all the surrounding facts relating to the situation.
When this occurs we don’t want you to do or utter anything that could be interpreted by the employee as dismissing them. So unhelpful phrases like “don’t bother coming back” or “if I see you again I will fire you” should be avoided.
If an employee has left you under ratio, or has left the premises during their shift in such a way as for you to feel there is a disciplinary case to answer, you must follow a fair procedure.
So what do we mean by a cooling off period?
Well if they storm off at Tuesday lunchtime, you would have thought that you would be hearing from them by Wednesday morning!
They may approach you by text, email or possibly call. We often find that employee’s initial contact is nonverbal. Remember they may be well aware that once delivered a resignation can’t be unilaterally withdrawn by the employee. They may expect that you won’t want to hear from them again.
If you do hear from them, and you want to and its best thing to do, them making contact after they have calmed down may mean you can work together to resolve the problem. If you want you can agree with the employee that he returns to work, without any break in his continuity of service.
What if they don’t make contact with you?
If you can’t contact with your employee, we tend to wait 24 to 48 hours to then write to the employee to acknowledge their without notice resignation and to confirm that they must return their uniform before you process them as a leaver.
If we aren’t sure our letter will be steered towards the, we consider your actions to be resignation, if they are not you must make contact by X …
What happens if they do turn up as if nothing happened?
The employee may well turn up for work the next day as if nothing happened, in that context we advise you investigate as normal and consider formal disciplinary action for the behaviour.
Remember if you accept their return and they have got a disciplinary case to answer if their actions were potentially gross misconduct (i.e. aggression, door slamming, car screeching) you should consider suspension pending the outcome of the investigation.
We love to help Nursery Owners, Nursery Managers and Committee Chairs make sense of the minefield of employment law and how it applies to Early Years. Please don’t hesitate to call us on 01527 909436.