Considerations for employers with an increase in resignations

posted by KeithDaniel

A number of articles have appeared online over the past month or so, claiming that there is a ‘mass exodus’ of employees leaving their jobs, having taken stock and re-evaluated their careers amid the impact of the Coronavirus pandemic.

In particular, it is reported that mid-career workers have enjoyed the switch to working from home and are reluctant to return to office working on a full time basis.  Improvement to work-life balance appears to a major factor, with lengthy commutes no longer seen as a necessity, and with spending more valuable time with family and friends becoming a reality.

For employers, this raises a number of interesting points.  The first being, how do they deal with employees wishing to work remotely or on a hybrid basis permanently?

Employers may wish to introduce a specific policy to deal with home and hybrid working, which in turn may incentivise employees to remain in their current roles.  This will not work for all organisations and, of course, is not compulsory, but if employers are experiencing an increased resignation count first hand, and the key reason is a lack of flexible working, it is certainly worth exploring options.  We are finding that an increase in a hybrid model is proving particularly popular, with employees apparently happy with attending the office and engaging with colleagues directly, but without being obliged to do so on an every day basis.  If this is something interesting employers, we are happy to discuss options for introducing and drafting necessary rules and polices.

Employers also need to be aware that where they do not introduce home or hybrid work on a permanent basis, it is highly likely that they will see an increase in formal flexible working requests.  Employees have a right for such requests to be considered on their merits and there is also a strict process that employers must follow or face the risk of a claim against them.  While an employer is able to decline a request for 1 (or more) of 8 defined reasons, there are potential indirect discrimination issues in simply turning down hybrid working on a routine basis, especially where employees have been able to work from home during the pandemic.

Of course, the point may come where resignations cannot be avoided, or appear likely.  If an employer finds themselves in this position, we would suggest considering the following protective measures:

  • Is there a right to place the employee on garden leave?  Where an employee is in a senior or key position, an employer may consider removing them from the business immediately on their resignation to limit their access to confidential information.  An employee could be paid in lieu of notice, but this would see them leave immediately with awareness of up to date sales/marketing/technical information.  An employer should therefore consider placing the employee on garden leave so that they are not required to work, and therefore will not have access to sensitive data, but they will still be available to provide assistance if required.  In order to take this step, employers must ensure the relevant employment contract gives the right to utilise garden leave or they could face breach of contract arguments.
  • Are post-termination restrictions included in the contract?  Employers must protect their business interests, and should check if they are appropriately restricting the employee’s activities post-termination.  Routinely this includes preventing employees from soliciting or dealing with the employer’s customers or employees for a set period.  If such clauses are in place, employers should consider reminding employees of their obligations, especially where they suspect future employment by competitors.  Legal action to enforce such restrictions can be complex and expensive, so well drafted clauses and early preventative measures are recommended.
  • Is it worthwhile entering into a settlement agreement with the employee?  If termination restrictions are not well drafted, or if the employee is threatening a constructive dismissal complaint, there may be benefit in looking to pay the employee a compensatory amount.  In return employers can secure a waiver of any claims as well as being able to introduce well drafted restrictions on the employee which will almost certainly be enforceable due to the employee having to receive independent legal advice.

As the furlough scheme has now ended, we recommend that employers take urgent action to ensure that employees are clear as to where they will be required to work, and if hybrid working is to be allowed, to introduce a clear policy.  Additionally, it is a good time to review all contracts of employment to safeguard business interests in the event that the rumoured ‘mass exodus’ does occur.

Should you wish to discuss any of the points in this article, please do not hesitate to contact the employment department on employment@berrysmith.com or call 02920 345 511.