Resignation, constructive dismissal and mutual agreement

With regard to (a), remember that you have probably invested a considerable amount of time, money and effort in recruiting, training and retraining the employee, and unless a full analysis of the reasons for the resignation are investigated and understood by the employer, this situation could recur without any valuable lesson being learned.

As far as (b) is concerned, there are two important points to bear in mind:-
1. Never threaten an employee that he or she should “resign or be dismissed”, as legally such action will be viewed as a dismissal, even if you obtain a letter of resignation from the employee, and an industrial tribunal will hold that the employer has terminated the contract.
2. Beware of the potential claim of Constructive Dismissal. Such a form of dismissal happens when an employee ends the contract, with or without notice, when there are circumstances giving him or her the right to terminate by virtue of the employer's conduct. In order to prove successfully such a claim of Constructive Dismissal, an employee will need to show that by his actions the employer has broken an important contractual term, indicating an intention not to be bound by the agreed contract, and/or that the employer is guilty of a breach of the contract in a serious or fundamental manner.

In consequence, an employer should avoid any actions such as the following without obtaining the employee's agreement:-
(a) Changing an employee's duties
(b) Altering an employee's pay or salary.
(c) Changing an employee's normal place of work.
(d) Undermining or altering an employee's authority or status.
(e) Changing any of the employee's terms and conditions without notice.

Beware also any provocative actions such as:-
Using extreme or foul language.
Exhibiting any form of discrimination.
Refusing to take safety precautions.

In the case of the ending of a contract by MUTUAL AGREEMENT, such a termination between employer and employee is best recorded in writing, even though oral agreements can be legal. If such an agreement is reached with an employee, and the agreement is completely and willingly accepted by the employee, and the contract is to be ended without any threat of dismissal, then there can be no dismissal in Law. It must be stressed that the employee must be willing to resign, subject to certain agreed conditions, rather than there be any suggestion of “resign or be dismissed”. The advantage of written recording of the termination agreement is obvious, and prevents any subsequent attempt by an ex-employee to deny the terms of the mutual agreement.