24 May, 2017
Q. We have a member of staff who had a dispute with her line manager before the Easter break and did not return to work or submit a fit note. Can we send a letter stating we will treat her as having resigned from her employment?
A. Sending a letter treating an employee as having resigned from their employment can often be a risk particularly following a dispute or altercation with a line manager.
This is due to the fact that there is not sufficient clarity as to whether it was the staff member's intention to resign, and the conduct itself would not usually amount to a resignation. Therefore if it was not the intention of the employee to resign, if they were to receive a letter from their employer treating them as such there is case law which suggests it could be grounds for constructive dismissal as a fundamental breach of the contract of employment.
Best practice in this situation would be to state within the letter that the employer is unsure of the employee's intentions and that they should get in touch as soon as possible. If there is no contact, then the employer would need to write to the employee and offer a fixed 'cooling off period' in order for the employee to state their intentions. Upon the expiry of the fixed period, if there is no contact then the employee will be treated as having resigned.
Q. We have had an Agency staff member engaging in supply work. The member of staff has now resigned, but has not returned school property (including an iPad). The Agency have not been responsive when asked about this.
A. Generally, agency staff will most likely be employed by the agency directly and a school will have a contract for the supply of services with the agency or employment business. In most cases the redress will be sought against the agency, rather than the staff member given the contractual relationship with them. As such, the ability to recover the items (or the value of them) will inherently depend as to whether there is a provision within the contract which allows the school to do so.
Given the specific nature of contractual relationships, it is imperative that independent legal advice is sought to the terms.
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