Questions we've been asked this month

Article

20 July, 2017

Q. We have a member of support staff whom has accepted employment elsewhere but has not formally tendered her resignation as of yet. How does this impact on my ability to recruit a replacement?

A. Practically speaking it would be advisable to keep an eye on the situation and ask the member of staff when you can expect to hear from them in respect of the resignation.

In terms of the recruitment process, whilst you may wish to get the ball rolling with interviewing and shortlisting, until the staff member has formally tendered the resignation, it may not be the best course of action to offer a candidate the job in case the existing member of staff (who remains employed until the resignation is tendered) has a change of heart and wishes to remain in post.

This limits the risk of a claim for constructive unfair dismissal, which the employee could bring if they have service of over two years. Similarly, if you were to offer a candidate a job before the staff member's resignation was tendered, the candidate may argue breach of contract if they accept the offer.



Q. A member of teaching staff on a term time only contract has tendered her resignation on notice and accepted an offer of employment elsewhere, but is claiming that she is owed holiday pay beyond her resignation date. Are we under any obligation to pay this?

A. As term time only staff are paid their holiday entitlement in their monthly salary as 12 equal instalments, it will be the case that the staff member will have already been paid her holiday entitlement for the year.

The staff member will most likely have had the opportunity to take the required minimum annual leave entitlement of 5.6 weeks under the Working Time Regulations in accordance with periods of school closure (usually by the mechanics of a contract of employment, which should specify this).

If anything, it could be the case that the teacher has over taken their entitlement in which case the school will have overpaid.

However, practically speaking, given the complexity in calculating such entitlements the school may not be minded to pursue the departing teacher for the overpayment.



If you are looking for any more information with regards to our services view our Education section. You can also contact Ruth Rule-Mullen in our Education department via email or phone on 01772 220195. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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