Both Keir Starmer and Angela Rayner have squarely placed themselves under the proverbial sword of Damocles this week; both have promised to resign their respective roles at the top of HM Opposition if the police find that their late-night 'working' curry breached lockdown rules. It raises some interesting questions about resignation:

• Is a promise to resign enough?
• Once a trigger event happens, is that enough?

For the Labour party, when should they start looking for replacement leadership candidates? In an employment context, to jump too early could be a breach in trust and confidence, to jump too late leaves an organisation with no leadership.

With vacancies in the labour market at an all-time high, and the buzz phrase of the 'great resignation' a popular one, it is useful just to remember first, what constitutes a resignation and secondly, the dangers of getting it wrong.

A RESIGNATION IS……. A unilateral serving of notice by the employee which invokes their contractual right to end their employment which then triggers their notice entitlement. Ideally, it should be in writing and be clear about the employee’s intentions to leave the organisation.   

A RESIGNATION IS NOT…... A promise to resign or a threat to resign in the future whether that is a verbal or written threat. Just because resignation is mentioned by an employee as part of a conversation does not necessarily trigger the termination provisions in their contract.

Unfortunately, the demarcation between what is and is not a resignation is not always so clear in practice. However, it is key that employers have some clarity. Without that clarity employers may trigger the notice provisions and, after the notice period, cease payment. If the member of staff was not aware they had resigned this could trigger a number of claims from unlawful deduction of wages to unfair dismissal. We would advise the following where there is uncertainty over resignation:

• If a verbal resignation, request for it to be in writing, giving details of what is needed
• If the written resignation is unclear, request further details and for it to be specific
• Consider including in your staff handbook the information needed for a resignation letter
• Resignation does not need to be accepted to trigger the termination provisions, however, best practice is to acknowledge receipt, confirm notice provisions and confirm leaving date
• Avoid a knee-jerk reaction if an employee 'accidentally' resigns in the heat of the moment – whilst employers are under no obligation to accept a withdrawal of a resignation, best practice is to address the situation and consider what, if anything, can be done to address the problem.

We will be looking at this issue in more detail at our Social care staffing webinar on 21 June.