Malcolm ZoppiSun Oct 15 2023

The Great Resignation: Top 3 factors that employees and employers should consider

Learn About The Legalities Behind the Great Resignation & How To Prepare.

According to The Guardian, a quarter of workers are planning to change roles in the next few months. As a result of the pandemic, job vacancies are record high and employees are ready for the next step in their careers. Randstad UK – a recruitment company, surveyed 6,000 workers and the results were astonishing; 69% of the people said that they were confident to move to a new role.

Checklist for employers

Making better offers of employment: Are you afraid of losing valuable employees? What can you do if you suspect they are planning to quit?

If you believe that it will be difficult to replace a certain employee who may already have another job offer, you should consider making a counteroffer as soon as you can.

A counteroffer can help you retain invaluable members of your team. However, the way you handle this is very important and you might want to consider external help to make the best possible offer, without going beyond what may be expected.

Terminating: What is the procedure?

Ensure that you, as the employer, are knowledgeable of the termination procedure. This can be found in the termination section of the employment contract, usually one of the last sections of the body. A standard employment contract will require a 4-weeks notice to be given before the termination takes effect. Will this be sufficient time for you to find a suitable replacement? Do you have any systems in place to combat large-scale resignations?

Having well-drafted termination provisions is key. These must be bespoke to your business needs and should be accompanied by any necessary restrictive covenants. The restrictive covenants will vary depending on the level of confidential information the employee has access to, and the amount of contact with colleagues and clients they may have. Ensure that you have appropriate and proportionate restrictive covenants to maximise the chances of these being upheld as valid in a tribunal if challenged.

Laying off people: Do you know the different procedures?

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You should always follow due process when laying off people.

If it is a redundancy, you must ensure you are choosing fairly who to make redundant, if several people perform the same job. Please note there are many other factors to consider.

If it is a dismissal then you must show that you have tried to resolve any issues you have with the employee.  You should hold a meeting and notify them of the need to dismiss them. You may need to give them a notice period and pay them throughout that. Here, it is very important to keep a paper trail of your attempts to rectify the issues and the effect that these have had on the performance of the employee.

If you do not want them to come into work, you can pay in lieu of notice, which means you give them the amount they would have received if they worked the notice period. You must ensure they are paid any unpaid wages, too.

Checklist for employees

Can I start a new job before my notice period finishes? What is garden leave?

Usually, during a notice period, you are still required to work and perform your duties for the current employer. For this, you may not be able to start a different job until the notice period has ended.

Garden leave is when, after you have notified your employer of your resignation, the employer asks you to spend the notice period at home, where you could be spending time in the ‘garden’. During garden leave, you will usually be asked to not work, not make contact with any clients or employees and to not take up any other form of employment that would compete with the current employer’s business.

Before resigning, you might want to consider any bonuses that are due to make sure that you are resigning at the right time.

Do any restrictive covenants apply to me?

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Restrictive covenants are clauses in your employment contract that attempt to limit what you can do after you have officially resigned (after the notice period). The purpose of restrictive covenants is to protect your employer’s business from competition deriving from ex-employees who had access to confidential information.

For example, employers may attempt to prevent you from working for a competitor, set up a competing business or stop you from poaching clients or colleagues. The law dictates that restrictive covenants should be proportionate. But what is proportionate?

Proportionate to your role in the company: If you work in the warehouse of a large manufacturer, a restrictive covenant that forbids you from working at a competitor for five years is disproportionate. This is because your level of access to confidential information is likely not going to greatly affect the employer’s business.

Proportionate to the employer’s business: A restrictive covenant by a small local business that requires an employee to not work for any competitor anywhere in the world for ten years, can be argued to be disproportionate. This is because, despite the excessive length of time, the geographical area is unnecessarily vast. Such a restrictive covenant would contradict the purpose of these restrictions: to protect an employer, not to distort competition.

What are your obligations upon resignation?

If you plan on resigning, you will probably need to let your employer know that you wish to resign. You cannot simply stop going to work. You must give your employer sufficient notice as per your employment contract.  You will still need to protect any confidential information you have access to or have been exposed to.

N.B.: the obligations regarding confidentiality usually do not end with the termination of the employment contract. You will likely still be required to not disclose any confidential information for a period of time after the termination.

Resigning from a job, or removing employees is not as simple as it may first appear. This is why it is always good to seek legal assistance to look over the contract you have with your employer/employee, to ensure that the correct procedures are in place regarding resigning/ dismissing and that restrictive covenants are reasonable to ensure enforceability. GZ Legal can help you with all of this. Contact us today for a free, no-obligation consultation.

GZ Legal’s experience

  • Assisted employers draft bespoke and comprehensive employment contracts;
  • Helped employees challenge unfair restrictive covenants;
  • Helped employees challenge unfair dismissals;
  • Helped employees challenge discrimination during a redundancy process and recruitment process; and
  • Helped employees secure a settlement offer before resigning over workplace bullying.
Disclaimer: This document has been prepared for informational purposes only and should not be construed as legal or financial advice. You should always seek independent professional advice and not rely on the content of this document as every individual circumstance is unique. Additionally, this document is not intended to prejudge the legal, financial or tax position of any person.

Comprehensive provider

Get the specialist support you need

Whether you require specialised knowledge for your business or personal affairs, Gaffney Zoppi can support you.