Unjustified dismissal risk if employer suggests a resignation...

If you have an underperforming employee it can be tempting to an employer to suggest that the employee may wish to look elsewhere for employment.

However, that approach carries a real risk that any resignation is deemed to be an unjustified dismissal.  The employer may be held to have terminated the employee and the only agreement from the employee was as to the terms of their departure (not the departure itself).

If looking for other jobs is raised an employer should ensure that this is the employee’s genuine wish and is not the result of pressure from the employer.  It is a good idea to allow a cooling off period for the employee to consider their options and come back at a later point with their resignation.  It also pays to recommend they take independent advice before reaching any decision. 

The safest way to negotiate any exit is to do so under a mutual agreement to negotiate on a without prejudice basis as part of a mediation or failing that a mutually agreed negotiation through representatives that is then confirmed as a settlement by a mediator from the Mediation Service of the Ministry of Business, Innovation and Employment.

Doing it yourself over a handshake opens an employer up to significant damages and lost wages if the employee later challenges what occurred.  If in doubt it pays to get advice from a professional experienced in this area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.