Q Can a nursery employee be treated as having resigned if she has not turned up for a number of days?
A The failure of an employee to attend work does not necessarily amount to a resignation. While the approach of some employers is simply to treat the absence as a resignation, there is legal risk associated with this, particularly in relation to employees with two years’ service or more who qualify for the right to claim unfair dismissal.
For an employee to resign, they must usually give clear and unambiguous notice of the termination of their employment. In the absence of this, an employer treating an employee as having resigned and therefore bringing their employment to an end may be considered as having dismissed the employee. Since no disciplinary or other process has been followed prior to such dismissal, the dismissal is likely to be deemed unfair.
Instead of treating the failure to attend work as a resignation, the approach often considered legally safer and more certain is to conduct a disciplinary process in relation to the ongoing absence from work. That process should include an investigation and inviting the employee to attend a disciplinary hearing. If the employee does not engage in the process despite attempts to contact them, the disciplinary allegation may be based on the information available (which may be limited to the employee failing to attend work without authority or explanation) and the disciplinary hearing may be held in the employee’s absence (usually after being rescheduled once).
Another option would be to treat the contract with the absent employee as frustrated (i.e. not capable of continuing and therefore terminating by operation of law); however, the circumstances of when such approach would succeed are extremely limited.
While the disciplinary procedure approach is more cumbersome, it has the clear advantage of putting the nursery in a better position to defend any subsequent claim made.
Q An employee has resigned and we wish to put him on gardening leave. There is no relevant clause in the contract. Can we require him to take a period of gardening leave?
A There is no legal right to put an employee on gardening leave where the contract does not provide for this. Imposing gardening leave in these circumstances could be argued by the employee to amount to a breach of contract, because they have an implied right to work. The employee could claim the breach of contract is repudiatory, in turn bringing the contract to an end straight away, without them having to work the period of notice and also rendering any restrictive covenants void.
Rather than unilaterally imposing gardening leave where there is no right to do so, the safer approach would be to seek to agree this with the employee. In most cases, employees will happily agree to remain at home while continuing to receive their full pay and benefits.
