Employee walked out giving to notice

[limessl]

An employee at my work didn't turn up for work one morning, then emailed in his resignation at 4.10pm and said he wasn't coming back.

He's been here less than a year and was still in his probation period which means he only needed to give one week's notice. I think he's worked about 6 hours since the last pay-day (although he's salaried and is contracted to work a 40 hour week)

What am I legally obliged to pay him? I was under the impression that he loses the right to any holiday pay he might have accrued.

 

[Employment Law Clinic]

An employee at my work didn't turn up for work one morning, then emailed in his resignation at 4.10pm and said he wasn't coming back.

He's been here less than a year and was still in his probation period which means he only needed to give one week's notice. I think he's worked about 6 hours since the last pay-day (although he's salaried and is contracted to work a 40 hour week)

What am I legally obliged to pay him? I was under the impression that he loses the right to any holiday pay he might have accrued.

Hi Limessl,

If he hasn't taken his holidays, he does lose these. (Subject to your notification process for holidays, he could have given notice & applied to take the week as holidays, but as not the case, the holidays are lost.)

Therefore, you're only obliged to pay him the 6 hours he's worked.


Karl Limpert

 

[limessl]

Thanks - interestingly ACAS said the complete opposite and that any accrued holiday pay up to the day he last worked for us would have to be paid. Are they more on the side of the employee or the employer?

 

[Employment Law Clinic]

Thanks - interestingly ACAS said the complete opposite and that any accrued holiday pay up to the day he last worked for us would have to be paid. Are they more on the side of the employee or the employer?

As I may have given you the completely wrong answer yesterday :redface:, I'll not pass judgement on ACAS!

There are circumstances in which leave can be lost (without compensation) if its not taken, but also circumstances where the value of the leave should be paid.

I'll have to look at recent case law, and give you a qualified (rather than a hurried, as was the case yesterday) answer to this. I'll post back when I've had time to look at the judgements.


Karl Limpert

 

[Faith28]

Thanks - interestingly ACAS said the complete opposite and that any accrued holiday pay up to the day he last worked for us would have to be paid. Are they more on the side of the employee or the employer?

They will err on the side of caution.

He will have accrued some holidays though depending on how long he lasted.

 

[yorkshirejames]

Karl, it is stated in the EU directive that holidays accrued but untaken on termination of employment must be paid.

 

[Employment Law Clinic]

Ok, my comments yesterday were entirely wrong, and ACAS are on the side of the law in this matter!

In a recent judgement (Lyons v Mitie Security) the Employment Appeals Tribunal has ruled that the mechanisms (of applying for & approving leave) could result in the loss of the right to any leave at the end of the leave year in respect of leave not taken – if the employee does not take leave during the year they could lose the right to the leave. So there are circumstances in which employees have to use it or lose it, but not in this case. (See paragraph 34 for the details.)

Regulation 14 of the Working Time Regulations 1998 covers the termination of employment during the course of a leave year, and in these circumstances compensation for the leave that hasn’t been taken does have to be paid.

Albeit rarely, one curious position that could arise is if the leave year happened to end on the same day as the employment; in these circumstances, I would think that the Lyons v Mitie case would hold the weight, and the leave would be lost. In most cases though, the two dates would be different, and as such, compensation for the leave not taken is payable in accordance with regulation 14.

The final thing to note is that this compensation only applies to the statutory leave - 5.6 weeks: regulation 14(1)(b) of the WTR refers to the proportion of leave the worker is entitled to under regulations 13 [this is the four weeks] & 13A [this introduced the extra 1.6 weeks leave], so if more leave is provided under the contract, any issue of compensation would only be applicable in accordance with the terms of the contract.

Apologies for the wrong advice yesterday. I’ll avoid posting in future when I’m in a rush, and make sure I check my facts beforehand!



Karl Limpert

 

[limessl]

Hi - many thanks for looking into it - he used up all his leave brought forward from last year so he's just got any entitlement from 1st Jan to be paid - although he doesn't bloody well deserve it!

 

[yorkshirejames]

Ok, my comments yesterday were entirely wrong, and ACAS are on the side of the law in this matter!

In a recent judgement (Lyons v Mitie Security) the Employment Appeals Tribunal has ruled that the mechanisms (of applying for & approving leave) could result in the loss of the right to any leave at the end of the leave year in respect of leave not taken – if the employee does not take leave during the year they could lose the right to the leave. So there are circumstances in which employees have to use it or lose it, but not in this case. (See paragraph 34 for the details.)

Wow - I've appeared before employment judge Taylor (the judge who heard that case at the ET). She was pretty fair from what I recall.

Paragraph 3 of that EAT judgment copies in full (I believe) Mitie's holiday policy, which actually seems pretty fair for other businesses who might want a policy to cover hourly paid employees.

 

[UKSBD]

Hi - many thanks for looking into it - he used up all his leave brought forward from last year so he's just got any entitlement from 1st Jan to be paid - although he doesn't bloody well deserve it!

Does his contract run from January 1st to December 31st or from 12
monthly periods from the time he started?

 

[ccp consultancy]

Does your holiday year run from Jan - Dec - If so then he has accrued holiday from 1st Jan to the last day he worked (minus any holiday that he has already taken).

If your holiday runs from April - March - then he has accrued from start date to end date minus holidays taken.

 

[Blood Lust]

If the employee has resigned in writing you have to pay him any holidays he has earnt but not yet taken by law.

 

[snowdrop13]

Hi,

We have just experienced something similar, an employee walked out last week with no notice, he has been with us 6 and a half months. he has taken all his holidays, I have paid him 2 extra days last week (he did not work them) my question is do we have to pay him a weeks notice? Sorry if i have posted in the wrong place but I need to get it right. He is in breach of contract several times over and has not contacted us since he left. He did not work a week in hand as I paid him the first week he worked, any help would be appreciated. We are only a small company

 

[sludgate2]

I would of thought that if he had resigned as per contract with one weeks notice then yes you would have to pay him the holiday entitlement but being as he resigned with no notice period and inapropriatley via email I would presume he has forfited any rights to this pay .

I am only giving my opinion thou,I would not be happy to pay any more than 6 hours if thats how some1 left my company.

I would reply nicely to the email ,saying sorry he has left ,ask if there is a reason ,suggest if he needs a reference your more than happy to write him one up ....and then quietly slip in that you will forward his pay of 6hours by the end of the week and his p45 will be in the post.
Just see then if he claims to want holiday pay

 

[LicensedToTrade]

Look at the date this thread was started...I expect the employee has died of old age by now.

 

[sludgate2]

lol ...whoops did`nt look to the date whooopsie

 

[Blood Lust]

Hi,

We have just experienced something similar, an employee walked out last week with no notice, he has been with us 6 and a half months. he has taken all his holidays, I have paid him 2 extra days last week (he did not work them) my question is do we have to pay him a weeks notice? Sorry if i have posted in the wrong place but I need to get it right. He is in breach of contract several times over and has not contacted us since he left. He did not work a week in hand as I paid him the first week he worked, any help would be appreciated. We are only a small company

Without written notice he hasn't breached his contract and is still legally an employee of your company. You need to get in contact with him and ask why he walked out and if he's coming back. If he isnt returning ask him for a resignation letter. If he refuses to send one (an email will do) you have to summon him to a back to work meeting in writing and if he doesnt attend have him for gross misconduct. At that stage he has breached the contract and you can sack him.

You have to pay him any holiday pay he has earnt and you can reclaim any reasonable costs such as over payments from his final wage. Make sure you get the wages right because it will cost you more to reclaim over payments at that stage than the money you've over paid him.

If you assume he has left without a resignation in writing and don't pay him his full wage because you've made deductions he will win if he takes you to a tribuneral. The tribuneral would also fine you for not following correct legal procedures.
I

 

[internetspaceships]

If he was contractually bound to give a week's notice then I'm sure he is in breach of contract.

If the employment contract is well written then you are actually entitled to deduct the reasonable costs of replacing his work due to that breach of contract.

That may or may not be deductable from his holiday entitlement however I am an employer not not an HR expert so I cannot give a definitive answer.

Karl, I don't think I'm wrong here but please feel free to correct me?

Jon

 

[David Griffiths]

you can reclaim any reasonable costs such as over payments from his final wage.

Only if that is specifically provided for in the contract of employment.

Nobody has asked if there actually is a written contract.

 

[internetspaceships]

Exactly David but like most threads, a huge amount of posts are based on what may or may not have happened sir

Please quote my whole sentence because that is actually what I said.

 

[Blood Lust]

If he was contractually bound to give a week's notice then I'm sure he is in breach of contract.

If the employment contract is well written then you are actually entitled to deduct the reasonable costs of replacing his work due to that breach of contract.

That may or may not be deductable from his holiday entitlement however I am an employer not not an HR expert so I cannot give a definitive answer.

Karl, I don't think I'm wrong here but please feel free to correct me?

Jon

You're wrong on this one. UK employment law is what counts and a tribuneral is bound by the law.

He is not in breach of contract it is unauthorised absence. To hold him in breach you need to go through disciplinary procedures for unauthorised absence or get a resignation in writing. If you dont and it goes to tribuneral then you lose.

The terms you can insert in a UK employees contract are also determined by UK law. You cant make up your own rules as UK businesses are bound by the law. Its also illegal to deduct costs of finding a replacement from his salary.

If you tried any of this and it was revealed at a tribuneral the fines you would encure would put you out of business.

I advise you to ignore the above poster because hes telling you wrong information. UK employment law can be found on the directgov website through the Jobcentre. Please dont collect opinions go to where the truth is.

 

[internetspaceships]

You are incorrect. If he quits a job without notice when he is due to give a weeks notice then he is in breach of contract.

 

[Steve Sellers]

You're wrong on this one. UK employment law is what counts and a tribuneral is bound by the law.

He is not in breach of contract it is unauthorised absence. To hold him in breach you need to go through disciplinary procedures for unauthorised absence or get a resignation in writing. If you dont and it goes to tribuneral then you lose.

The terms you can insert in a UK employees contract are also determined by UK law. You cant make up your own rules as UK businesses are bound by the law. Its also illegal to deduct costs of finding a replacement from his salary.

If you tried any of this and it was revealed at a tribuneral the fines you would encure would put you out of business.

I advise you to ignore the above poster because hes telling you wrong information. UK employment law can be found on the directgov website through the Jobcentre. Please dont collect opinions go to where the truth is.

You are incorrect. If he quits a job without notice when he is due to give a weeks notice then he is in breach of contract.

In the words of Harry Hill......."theres only one way to settle this........"

 

[Blood Lust]

You are incorrect. If he quits a job without notice when he is due to give a weeks notice then he is in breach of contract.

Ignore him an go to directgov via the jobcentre. It covers unauthorised absence and dismissal.

If you listen to him and it goes to tribuneral you'll get hit with a load of fines as well as having to pay the guy compensation.

The guy above has no clue on UK employment law.

 

[internetspaceships]

Nah Steve. There's a million and one factors that aren't clear and fro which information hasn't been provided.

However. Walking out of a job on the spur of the moment is breach of contract.

Yes the employer has to invite the employee to a hearing to determine whether or not a disciplinary is appropriate and all that malarkey but the act is breach of contract on the employees part.

 

[Steve Sellers]

Nah Steve. There's a million and one factors that aren't clear and fro which information hasn't been provided.

However. Walking out of a job on the spur of the moment is breach of contract.

Yes the employer has to invite the employee to a hearing to determine whether or not a disciplinary is appropriate and all that malarkey but the act is breach of contract on the employees part.

I haven't read the full post as I saw the date on the OP. But yes your quite right walking out without working a notice period is a breach of contract. I have never heard of an employer suing personally but I am sure there is the odd case (at highly paid executive level).

 

[Blood Lust]

Nah Steve. There's a million and one factors that aren't clear and fro which information hasn't been provided.

However. Walking out of a job on the spur of the moment is breach of contract.

Yes the employer has to invite the employee to a hearing to determine whether or not a disciplinary is appropriate and all that malarkey but the act is breach of contract on the employees part.

UK employment law means you require a resignation in writing. Thats why when you say you quit most companies (except the odd few that dont have a clue) say go write me a letter saying it.

Without a letter you have nothing to show as evidence at a tribuneral that he quit. They wont take your word on it they require evidence because the law only works off evidence.

If you go to tribuneral without it he could say I walked off site because I was stressed, I had personal problems, my auntie died, my wifes having an affair etc, etc, etc.

When an employee walks off site without resigning in writing Human Resources sends them a letter inviting them to a meeting. This is to find out if any of the above problems exist or if the cause of your unauthorised absence is that you really have quit.

This procedure is required by law if they didnt resign in writing. It also enables you to sack them if they dont have reasonable grounds for being absent. If you miss this procedure out the tribuneral will impose heavy fines on your business regardless of the outcome.

As I said UK employment law is laid out for all to see on the directgov website. It tells you all the procedures you must follow and you must as an employer otherwise sooner or later you've got a shock coming once you encounter a member of staff that knows what they're doing.

 

[Steve Sellers]

If you go to tribuneral without it he could say I walked off site because I was stressed, I had personal problems, my auntie died, my wifes having an affair etc, etc, etc.

Tip 1 - If you are going to troll on a an employment law thread you could make yourself believable at least. Spelling TRIBUNAL wrong is a dead give away.

Tip 2 - Go trolling on the daily mail website. Everyone who reads that paper is so angry about everything that they are easy targets to wind up.

 

[internetspaceships]

UK employment law means you require a resignation in writing. Thats why when you say you quit most companies (except the odd few that dont have a clue) say go write me a letter saying it.

Without a letter you have nothing to show as evidence at a tribuneral that he quit. They wont take your word on it they require evidence because the law only works off evidence.

If you go to tribuneral without it he could say I walked off site because I was stressed, I had personal problems, my auntie died, my wifes having an affair etc, etc, etc.

When an employee walks off site without resigning in writing Human Resources sends them a letter inviting them to a meeting. This is to find out if any of the above problems exist or if the cause of your unauthorised absence is that you really have quit.

This procedure is required by law if they didnt resign in writing. It also enables you to sack them if they dont have reasonable grounds for being absent. If you miss this procedure out the tribuneral will impose heavy fines on your business regardless of the outcome.

As I said UK employment law is laid out for all to see on the directgov website. It tells you all the procedures you must follow and you must as an employer otherwise sooner or later you've got a shock coming once you encounter a member of staff that knows what they're doing.

I've already covered your salient points so what point are you now making?

 

[Business News]

Karl, it is stated in the EU directive that holidays accrued but untaken on termination of employment must be paid.

If you do some research into this on the government and acas web sites then holiday pay accrued must be repaid. That's a fact. There is some ambiguity though as it is illegal to pay holiday pay that is not used for the purpose of holiday. This is to ensure someone working 52 weeks of the year cant then receive a 28 days pay top up.

Our read on the legislation that has been sort of confirmed by advisors is that you pretty much have to force employees to take 28 days holiday per year whether they want to or not. If your company allocated more than the statutory minimum then it comes down to what's in your contract of employment as to your liability to pay any accrued holiday that remains unused.

 

[Employment Law Clinic]

Without written notice he hasn't breached his contract and is still legally an employee of your company.

Really? Well as it’s apparently on the Direct.gov website, can you offer a link to where

UK employment law means you require a resignation in writing

?

and you can reclaim any reasonable costs such as over payments from his final wage

What dangerous advice! You cannot do this without a clause in the contract, which many employment contracts (including the template contracts from Business Link) don’t have.

If you assume he has left without a resignation in writing and don't pay him his full wage because you've made deductions he will win if he takes you to a tribuneral. The tribuneral would also fine you for not following correct legal procedures.
I

A fine? Since when have they started issuing fines?

Oh, and your spelling appears to be upsetting some people.

If he was contractually bound to give a week's notice then I'm sure he is in breach of contract.

If the employment contract is well written then you are actually entitled to deduct the reasonable costs of replacing his work due to that breach of contract.

That may or may not be deductable from his holiday entitlement however I am an employer not not an HR expert so I cannot give a definitive answer.

Not wrong on any count Jon.

You're wrong on this one. UK employment law is what counts and a tribuneral is bound by the law.

He is not in breach of contract it is unauthorised absence. To hold him in breach you need to go through disciplinary procedures for unauthorised absence or get a resignation in writing. If you dont and it goes to tribuneral then you lose..

What complete tosh are you talking about Blood Lust? If he’s breached the contract – as here, resigning without the necessary notice – how can you hold a disciplinary? There is no-one to discipline!

The terms you can insert in a UK employees contract are also determined by UK law. You cant make up your own rules as UK businesses are bound by the law. Its also illegal to deduct costs of finding a replacement from his salary.

If you tried any of this and it was revealed at a tribuneral the fines you would encure would put you out of business.

Again, what are you on about? What terms are determined by UK law? The employer & employee can agree to are for them to decide; some might not be valid if they don’t comply with the law – such as paying less than the minimum wage – but UK law doesn’t stipulate what terms you can agree.

And what is this about fines? Is the consultation over already?

Without a letter you have nothing to show as evidence at a tribuneral that he quit. They wont take your word on it they require evidence because the law only works off evidence.

I’ve got two sex discrimination hearings coming up in the next couple of months. As we have about 15 witnesses between the two cases, do you think I can free up about a week? Obviously these witnesses will serve no useful purpose, as the tribunal won’t take the word of any of them, so really seems no point having them there at all! :|

When an employee walks off site without resigning in writing Human Resources sends them a letter inviting them to a meeting. This is to find out if any of the above problems exist or if the cause of your unauthorised absence is that you really have quit.

This procedure is required by law if they didnt resign in writing. It also enables you to sack them if they dont have reasonable grounds for being absent. If you miss this procedure out the tribuneral will impose heavy fines on your business regardless of the outcome.

As I said UK employment law is laid out for all to see on the directgov website. It tells you all the procedures you must follow and you must as an employer otherwise sooner or later you've got a shock coming once you encounter a member of staff that knows what they're doing.

And what about the many small companies that don’t have a Human Resources department? Who sends a letter then?

I’ve never seen any UK employment law on Direct.gov. Can you post a link to any of it BS?


For the record, the employee resigned. The employer can't force him to confirm that in writing, but he certainly does not have to hold a disciplinary for an employee that has resigned.

It is sensible to write, acknowledging & accepting the verbal resignation, but nothing more than that is required by UK law, and BL is simply talking BS above!



Karl Limpert

 

[Business News]

And what about the many small companies that don’t have a Human Resources department? Who sends a letter then?

I’ve never seen any UK employment law on Direct.gov. Can you post a link to any of it BS?

Thats why its a good idea for small businesses to join up to a trade body or the FSB where they can get free (included in the subs) legal advise through the employment minefield.

 

[Employment Law Clinic]

Thats why its a good idea for small businesses to join up to a trade body or the FSB where they can get free (included in the subs) legal advise through the employment minefield.

I get a legal advice line with my bank account, and also with my insurance company. The usual advice is that the details are too complicated, and professional advice should be sought! :|

While I've heard some positive views about FSB & the like, I've also heard the same said from them.



Karl Limpert

 

[LicensedToTrade]

Crikey... I'm torn. If Blood Lust even bothers to come back to respond now is he stupid or incredibly brave?

I wouldn't fancy being up against Karl in a tribuneral hearing

 

[Steve Sellers]

What dangerous advice! You cannot do this without a clause in the contract, which many employment contracts (including the template contracts from Business Link) don’t have.

Sorry to be picky but unless I've misinterpreted your response he was right on this point. s.14 ERA allows for the recovery of overpayments?

 

[LicensedToTrade]

Sorry to be picky but unless I've misinterpreted your response he was right on this point. s.14 ERA allows for the recovery of overpayments?

The answer to this can be found in section 13 (a) of the same act. I believe Karl already covered this when he said "You cannot do that without a clause in the contract".

 

[Steve Sellers]

The answer to this can be found in section 13 (a) of the same act. I believe Karl already covered this when he said "You cannot do that without a clause in the contract".

Sorry it wasn't a question it was a statement. s.13 Doesn't apply to an overpayment of wages or expenses. That's the whole point s.14 covers excepted deductions.

I'm thinking Karl meant they can't claw back 'reasonable costs', but the poster went on to be specific about overpayments.

 

[LicensedToTrade]

Sorry it wasn't a question it was a statement. s.13 Doesn't apply to an overpayment of wages or expenses. That's the whole point s.14 covers excepted deductions.

I'm thinking Karl meant they can't claw back 'reasonable costs', but the poster went on to be specific about overpayments.

The question mark at the end of your 'statement' led me to believe it was a question.

 

[Steve Sellers]

The question mark at the end of your 'statement' led me to believe it was a question.

It was a 'rhetorical' question?????????????????

 

[Richie N]

Was going to add that holidays must be paid up until termination but then saw Karl had corrected this and the original thread is quite old.

Will also add that ACAS are not always right, believe it or not they can give wrong advice. If in doubt ask for clarification from another colleague of ACAS, usually if you call them twice you may get two different answers.

Any employees that do not give notice, you can issue them with an AWOL letter. This covers your back as an employer.