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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50137
Experience:  Qualified Employment Solicitor
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I had an employee who walked out quitting mid shift when we

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I had an employee who walked out quitting mid shift when we informed her that we were going to conduct a disciplinary due to her repeated lateness and rudeness to customers both having a direct effect on outer takings over £1500 lost is a conservative estimate.
She then went home didn't turn up or contact us for 3 shifts, wrote all over Facebook she had left and needed. New job. She then contacted us after speaking to CAB saying it was heat of the moment and wanted to come back. I conducted a meeting for her to give her the opportunity to explain herself and her situation and why she thought we should take her back. She didn't apologise at any point in fact just used it as an excuse to complain about the management style and ask to start her shift late if she came back so she would be on time. (We both had a representative taking notes, went through them at the end of the meeting and all agreed they were correct) We decided not to rescind her resignation after taking a couple of days to think about it. She then appealed our decision to rescind it has been to early conciliation through ACAS where they wanted to give us the opportunity to reinstate her or pay her off. We refused and she is now threatening tribunal if we don't take her back. What can we do.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long has she worked there for?

Customer: Hi Ben She worked for us for 1 year but the previous employer for 6 years but did walk out while working for him and came back. She also threatened to leave on precious occasions
Ben Jones :

Thanks for clarifying, can I just check if her service with you and the previous employer was continuous, without any breaks, and as a result she has around 7 years service in total?

Customer: Hi Ben I have been told she has walked out before with old emplo
Customer: employer but he can't remember when and doesn't have the dates
Ben Jones :

but is her service with her last employer continuous, do both employments count as one?

Customer: Yes unfortunatly
Ben Jones :

As she has continuous service she is protected against unfair dismissal and constructive dismissal and will have certain rights.

As far as her situation is concerned, 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.

At this stage you really have two options – try to reach a settlement financially (she may accept a figure you are happy with), or see if she takes this to tribunal. She will have to pay over £1,000 on fees to claim so this may put her off, but if she proceeds you will have to try and defend any claim she may make.

Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you

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