- 7 minute read
- Last updated: 25th October 2019
Is walking out of a job tantamount to resigning? And, if so, what are the legal implications of resigning without notice and how does this affect your employment rights?
This article covers:
- Does walking out of a job mean I have resigned?
- What are the legal implications of walking out of work?
- What effect does walking out of a job have on my employment rights?
- Will I be able to get my job back after walking out?
- ill I have a claim for constructive dismissal after walking out of work?
What is a reasonable assumption on the part of your employer to reach in the circumstances, and whether it is reasonable for your employer to treat the act of you walking out of work as a resignation, will depend upon the facts.
By walking out of work this does not necessarily mean that you can be treated as having resigned. You may have had an argument with your employer or work colleague, or otherwise been involved in a stressful situation, and simply walked to blow off steam, albeit with every intention of returning.
Where you have walked out of work using words that were unclear as to your intentions, such as “I’m going home” or “I’ve had enough”, even if you have hinted at leaving for good, this is unlikely to be treated by your employer as your resignation, nor would it be reasonable for your employer to treat this as such.
Reacting in the heat of the moment should not be regarded as a true reflection of your intentions, especially if you return shortly afterwards once you’ve calmed down. If, on the other hand, you have walked out of work using statements such as “I’m never coming back”, “Consider this my notice” or “I quit”, in most cases an employer may reasonably conclude from this conduct that you have in fact intended to resign, especially if you fail to return the same day or shortly after.
Similarly, if you have handed in your keys, security pass, uniform or other work equipment, this is likely to result in the same reasonable conclusion, or otherwise compound any conclusion already drawn from what you have said.
By walking out of work, not least where your conduct and words are unequivocal, you may have effectively, albeit unintentionally, terminated your own contract of employment.
Although many employers will still expect their employees to confirm any resignation in writing, resignations can be given verbally and so, in some cases, it will be reasonable for your employer to treat you as having resigned.
As such, your employer is not legally obligated to provide you with any cooling off period, nor do they need to afford you any opportunity to change your mind.
In these circumstances, save except where you walked out of work in response to your employer’s conduct and that conduct was so serious so as to justify a claim for constructive dismissal, you are unlikely you have any legal recourse against your employer.
If, however, your employer can be said to have acted unreasonably in treating your conduct of walking out of work as your resignation, you may have a claim for unfair dismissal. In other words, where your employer is insisting that you have resigned when this was never your intention, you may be able to argue that they have, without good reason or due process, dismissed you.
To be eligible to claim for unfair dismissal, in most cases you will need to have worked for your employer for a continuous period of at least 2 years. You will also need to be classed as an employee rather than a worker.
It is important to note that even if you are eligible to bring a claim for unfair dismissal, you will need to weigh up the costs against the likely outcome and whether it is, in fact, worth pursuing legal action.
You should always, wherever possible, seek expert advice in relation to claiming unfair or constructive dismissal, ideally before taking direct action in response to any conflict or discontent in the workplace by unexpectedly, and without warning, walking out of work.
In the event that you have effectively resigned from your job by walking out of work, and thereby not provided your employer with any notice, written or otherwise, this will almost certainly have an impact on any entitlement to pay or pay in lieu of notice.
Typically, an employee is required to provide their employer with a specified period of notice. This will often be set out under the terms of any contract of employment, which may also provide that notice must be in writing.
In the absence of a written contract, or where the contract is silent as to what notice must be given, you are still required to give your employer at least one week’s notice if you have been in your job for more than a month. This is a statutory minimum requirement.
As such, by failing to provide any written or verbal notice as is required, you will not be entitled to any pay in lieu of notice. You may also lose out on any contractual bonuses to which you would otherwise be entitled.
Moreover, any failure to provide notice may mean that you yourself are in breach of contract for which your employer could take you to court, although they would have to show financial loss caused by your early departure.
In any event, given the risk of legal proceedings, wherever possible you should adhere to any contractual or statutory notice requirements. If you would prefer to give a shorter notice period you should speak to your employer directly about this before walking out of work.
You may be able to reach an agreement with your employer to waive or reduce your notice period, allowing you to leave either immediately or within a shorter time frame than you would otherwise be entitled to do.
By either working your notice period, or agreeing to work a shorter notice period, you will not only avoid any potential breach of contract claim being brought against you, you should receive your normal pay for this period, together with any bonuses or other benefits that you are entitled to, such as pension contributions.
In circumstances where your employer has mistakenly formed the belief that you intended to resign by walking out of work, or you intended to do so in the heat of the moment but now want your job back, you will need to offer your employer some form of explanation as soon possible, for example, that you didn’t intend to leave or that you made a rash decision and have changed your mind.
Your employer can then decide whether or not to accept your resignation, although, as previously indicated, where they have acted unreasonably in treating your actions as a resignation this may form the basis of a claim for unfair dismissal.
If you are reluctant to contact your employer or manager directly to resolve the situation, you might be able to speak to someone else, for example, another manager or someone from the HR department.
You should keep a written record of any conversation that you have with your employer or HR, recording the date and time of the conversation, as well as what discussed. In the event that legal action ensues, you may need to refer back to previous discussions and communications as evidence of how the matter was dealt with.
Only where it was unreasonable for your employer to treat the act of you walking out of work as your resignation will you have any legal basis upon which to seek reinstatement, as well as compensation, through the employment tribunal, ie; in the context of a claim for unfair dismissal.
In the event that you have walked out of work in consequence of your employer’s conduct, and that conduct is so serious that it amounts to a fundamental breach of contract, you may have a claim for constructive dismissal. In such cases, an employee is entitled to resign without providing notice.
Needless to say, it is always best to set out any resignation in writing, not least because in this way you can more easily demonstrate, if necessary, your reason for leaving. That said, the absence of any written resignation, or notice period, will not preclude you from making a constructive dismissal claim.
To be able to bring a claim for constructive dismissal, there are certain eligibility criteria that must be met, namely:
- You are classed as an employee rather than a worker
- You have worked continuously for your employer for no less than 2 years, although in some limited cases no minimum length of service is requiredYour employer was in serious breach of your contract of employment so as to justify termination of that contract
- You resigned in response to that breach, and not for some other reason
It is not sufficient to show that an employer has behaved unreasonably. There must be a fundamental breach of either an express term of the contract or breach of the implied term of mutual trust and confidence. This can relate to either an isolated incident or, alternatively, a course of conduct, the cumulative effect of which is to constitute a fundamental breach.
Common examples of conduct on the part of your employer that is likely to be regarded as a breach of contract sufficiently serious to justify you walking out of work might include where:
- Your employer, or work colleagues, have been bullying or harassing you
- Your employer is discriminating against you, for example, by reason of your age, disability, gender, race or religion
- Your employer has significantly reduced your salary without your agreement or is threatening to do so
- Your employer is refusing to pay you at all
- Your employer, without warning or good reason, has demoted you
- Your employer has made unreasonable changes to the way that you work, for example, changing the location or hours that you work without the contractual right to do so
- Your employer is forcing you to work in breach of health and safety laws.
Importantly, as part of any tribunal claim for constructive dismissal, the employee must show they have mitigated their losses resulting from the dismissal. This means, for example, proving you have tried to find a new job.
In the event that you are contemplating walking out of work, or you have already done so, and you are unsure about your legal position and rights or what to do next, seek expert legal advice and representation from an employment specialist.
DavidsonMorris are experienced employment law advisers for employees. We can help with all aspects of contentious exits and workplace disputes, including resignations and claims for unfair and constructive dismissal. We can advise on your rights and obligations under your contract and under statute, and on options for next steps based on your best interests.
Where at all possible, it is always best to obtain professional advice before walking out of work so as to protect yourself from any potential claim against you for breach of contract or, on the other hand, to preserve any potential claim against your employer. You are likely to have more options and more control over the situation by taking advice before you resign.
In some circumstances, particularly cases involving complex issues or senior-level employees, it may be appropriate to try and negotiate a settlement agreement with your employer to bring the matter to a swift conclusion, on terms mutually beneficial to both parties.
If you have a question about walking out of work or need help with resolving a dispute with your employer, contact us.