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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 44957
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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A member of staff walked out of his work yesterday at 1pm,

Customer Question

A member of staff walked out of his work yesterday at 1pm, he disagreed with a decision from his manager over commission for selling a caravan. He also told the manager to F off. The member of staff has worked for the company since 2011, he is paid hourly and works on a rota. He does not have a written contract of employment. Everything was done verbually by a manager before I was involved with the business. I do not like the fact he walked out and left us short staffed, also that he swore at my manager and his attitude towards his manager. Where do I stand with this and what actions can I take
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Is his disciplinary record clean?
Customer: replied 1 year ago.
Yes other than he tried to walk out before but the manager persuaded him to not go.
Expert:  Ben Jones replied 1 year ago.
Sometimes an employee may resign in the heat of the moment, for example after an argument with a manager or colleague. It could be an official resignation, or an act that implies resignation, such as clearing their desk, saying they will never return, etc. In such situations they might not really have meant to resign but did so on impulse. Therefore, the employer should not automatically assume that the employee has resigned and should allow a short cooling off period for them to change their mind if necessary.
The leading cases are those of Kwik-Fit Ltd v Lineham and Ali v Birmingham City Council. It was decided that an appropriate period for the employee to change his mind was "likely to be a day or two". That is on the assumption that the employee had not already been given the opportunity to reflect on their apparent resignation and retract it.
Therefore, in circumstances where an apparent resignation has occurred in the heat of the moment, the employer would be expected to give the employee a couple of days before treating their actions as a formal resignation. That time should be used by the employer to contact the employee in order to clarify their position. Failure to do so and take their resignation at face value could be treated as a dismissal instead, which could easily be challenged as being unfair in the employment tribunal.
If he decides to stay then you are able to consider disciplinary action for the incident which occurred. You have a duty to ensure a fair disciplinary procedure is followed, such as investigating the allegations, inviting him to attend a formal disciplinary, presenting him with any evidence, allowing him to be accompanied and then also allowing him to appeal if necessary. In the circumstances I would say probably it may end up with a formal warning rather than dismissal but keep it on file for a year let’s say and if further incidents occur in that time then you can consider further disciplinary action and even dismissal.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.
Many thanks. He has since left a message on my phone saying he is not coming into work today and he thinks it is time for him to go.
Expert:  Ben Jones replied 1 year ago.
ok if that is the case then he appears to have confirmed his decision so you can accept his resignation - ask him if he is going tom work his notice period or not. If he is not then he does not have to be paid for it and all you have to do is pay him up to his last day of employment including any accrued holidays
If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Customer: replied 1 year ago.
I have spoken to him and he has said he is resigning bringing his letter, keys and uniform in on Wednesday. I offered to sit down with him to listen to his side but he said he wanted to leave as he couldn't work with the sales manager.
Expert:  Ben Jones replied 1 year ago.
you do not have to discuss his decision with him, all that is required is if in the heat of the moment he walks out - to confirm with him within a day or two that it is what he intended to do. If he confirms that then you can just accept his resignation
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether you need further help or if I can close the question? Thank you
Customer: replied 1 year ago.
He has come in this morning and has changed his mind he does not want to resign. He brought the incident and his thoughts on the matter in writing which we discussed but I knew the minute he walked in he was not going to resign. It put me on the spot as this discussion was not an official disciplinary hearing. What should I do.
Expert:  Ben Jones replied 1 year ago.
Have you accepted his retracted resignation?
Customer: replied 1 year ago.
Suppose so as it was only verbal on Sunday and he was due to bring it in writing today. He is in work today as further to you stating the case law I was unsure what to do, I told him that I would have to hold another meeting with the sales manager to discuss him walking out.
Expert:  Ben Jones replied 1 year ago.
Thank you for your response, which I will now review. I will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Customer: replied 1 year ago.
I am awaiting a reply
Expert:  Ben Jones replied 1 year ago.
Hi sorry I posted my response last night for some reason it did not register. To be honest the law only requires you to give the employee a day, maximum two, to allow them to change their mind. You should have contacted the employee to clarify if they meant to resign or not - if they confirmed their decision then they cannot later retract it. Sop the key is - did you contact them within this period and ask them about their decision. If so., did they confirm they wanted to resign and only changed their mind later on - if that was the case then you do not have to accept them back into the business.
Does this clarify things for you?
Customer: replied 1 year ago.
He told me on the phone on Sunday the day after he walked out, I did not contact him again as he said he was coming in on Wednesday with his letter. He has been back in work since yesterday. So can I now only go through a disciplinary route
Expert:  Ben Jones replied 1 year ago.
Just to clarify what did he tell you on the day after he walked out?
Customer: replied 1 year ago.
He was very bitter on the phone to me stating the work place was not a happy place for him. He then told me he was not coming into work on Sunday as he was due in and he thought it was time for him to go(leave the company), he was resigning. He would come in Wednesday with the resignation letter.
Expert:  Ben Jones replied 1 year ago.
It looks like he was given the chance to retract his resignation which he failed to do and confirmed he still wants to resign so in the circumstances you do not have to take him back and can treat him as having resigned
Expert:  Ben Jones replied 1 year ago.
Hello, if your query has been answered could you please take a second to leave a rating for the help so far, thanks

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