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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50150
Experience:  Qualified Employment Solicitor
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Apprentice - not completed 3 months probationary yet Been

Customer Question

Apprentice - not completed 3 months probationary yet
Been taking days off work or coming in and then going home.
In December she was told (as were all employees) - no longer acceptable to text notification of absence - need a verbal or voice message, stating expected return date & outline of sickness.
She was sick on Friday - voice message - no reason, no return date. Again, text on Monday - no reason, no return date.
I phoned her and asked her to phone me with BOTH answers ASAP
She phoned, when I asked when she was expecting to return - she asked for a meeting with me instead. I said NO, I was busy and wanted to know when she was coming back and told her she could discuss whatever with me there and then. (She queried her contract hours the day she went off sick - I assumed it was about that again).
She told me - rudely, I'm not coming back, I'm not finishing my apprenticeship, I'm pregnant! (First I knew of it)
I told her it was customary (although not in her contract) for written resignation, I therefore accepted it an agreed she could go on the Friday following, no need to return to work.
Her mother emailed me saying she did not want to resign - she felt pressured into sharing her pregnancy news and she wasn't thinking straight.
I responded, outlined clearly what happened and made clear I accepted her verbal resignation and had notified payroll accordingly.
I reflected overnight and, believing it may have been under pressure, invited her into an informal meeting with me to discuss her position and options (I.e. I would reinstate if she agreed to continue her apprenticeship etc.)
She has been difficult, demanding her mother came to the meeting (I said No), today, after hours, she has requested a colleague sits in the meeting with her - again, I've said no. I have agreed we will record in note form and she can sign it as an accurate record (or not) - choice is hers.
I feel she is trying it on - using the pregnant card - realised she wont get benefits if she resigns - doesn't want to continue apprenticeship - just wants to work for us - What's my options? Do I reinstate - has she officially resigned even?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. What would your ideal outcome be in the circumstances?
Customer: replied 2 years ago.
I think this young lady is already proving to be unreliable just 12.5 weeks into her employment! If I could legally process the resignation that would be our company pref. If have to reinstate because she could argue it was a heat of the moment decision - then I want her to complete her apprenticeship, which includes college, exams and all - She wants to work for us - but not the college part - which is what we want her to do - that was the terms we took her on under
Customer: replied 2 years ago.
I feel we can't comment on under performance or she'll use the pregnancy card, I feel jobs like walking daily to post office will be pushed back on as its a fair walk (and she's pregnant) - I feel we cant extend her probation now or she'll claim it was discrimination and bullying - I feel we are over a barrel - if she took us to a tribunal (which I feel she is building up to)
Customer: replied 2 years ago.
Have you responded? If so, where do I find your response - If not, when should I expect a response?
Customer: replied 2 years ago.
Please do not call after 9.30PM - Too late - After this time, email only please
Expert:  Ben Jones replied 2 years ago.
You have to be careful with accepting the resignation, because 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. There are options to try and terminate her employment instead but for now try to seek clarification f she had intended to resign and if you hear nothing for a few days you can treat it as a valid resignation. This is your basic legal position. I have more detailed advice for you in terms of the options you have should the resignation prove not to be valid, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Customer: replied 2 years ago.
I am still awaiting a response - has one been sent - the email implies it has -
Expert:  Ben Jones replied 2 years ago.
Yes it is above can you see it?
Customer: replied 2 years ago.
Yes got it. Thank you. I did accept her resignation, but, within 24 hours invited her back for an informal meeting to discuss her options, because, as you say, it may have been heat of the moment and I wanted her to reflect. The meeting is tomorrow - But I sense she is actually angling for unfair dismissal - I will reinstate based on her working to the terms of the apprenticeship - She said (via her mothers communication) - she wanted to give up the apprenticeship but not her job - but that is not what we employed her for, nor will we get the government grant if she doesn't complete - part of the cost of employing her and our motivation for taking an apprentice. We want an apprentice, not an office junior. I will meet with her and offer to reinstate - It is then up to her - She says we have humiliated her, yet, only I had the call and no one else in the business knows, other than to say she is leaving for personal reasons. I have even held pay roll off of finalising her salary details until we';ve met. Hopefully, I'm doing the right thing!
Customer: replied 2 years ago.
I have not had an answer to second question
Expert:  Ben Jones replied 2 years ago.
Hello, my apologies for not replying sooner, I was taken ill and have only just managed to get back on the site to catch up with work waiting for me. I have read your latest response but could not see a specific question you needed me to answer, can you please clarify what queries you wanted me to deal with ad I will reply as soon as I can, thanks