Topic of the week: Resignations case study

In this week's topic of the week article, Amy Nash and Sarah-Marie Williams of Clyde & Co LLP conclude a series of articles on resignations with a case study that looks at how employers can protect their business in the event of an employee resignation. 

By invoking a garden leave clause an employer can prevent a departing employee from having access to confidential information during his or her notice period. Restrictive covenants can be used to limit an employee’s work-related activities post resignation, but should go no wider than necessary to protect the employer’s legitimate business interests. 

  • Topic of the week: Resignations case study Employers can help to minimise the potential negative impact of resignations by invoking contractual clauses aimed at protecting their business, taking steps to recover property and dealing with performance and conduct issues during notice as they arise. 

Previous articles in this topic of the week series

Resignations: employee notice An overview of employees’ notice obligations and employers’ rights in relation to employee notice. 

Resignations: protecting the business A look at ways in which employers can protect their business when an employee resigns. 

Resignations: checklist A checklist on the practicalities of managing resignations. 

More from XpertHR on resignation and related topics

XpertHR subscribers have access to a wealth of material on employee resignations and related issues - ranging from policies and documents on garden leave to FAQs on notice rights. We pick out just some of the information available on the subject. 

Managing resignations and conducting exit interviews

There are a number of resources on XpertHR to help subscribers deal with employee resignations and manage the exit process. For example, in the XpertHR "how to" section, there is guidance on:

A Letter responding to an employee's resignation in the XpertHR policies and documents section can be used to confirm receipt of an employee's resignation. 

How to conduct an exit interview from Personnel Today offers practical guidance on conducting exit interviews, while the Exit interview form in the XpertHR policies and documents section can be used to gather information about an employee's reasons for leaving. 

Employers can use the Return of company property contract clause to oblige an employee to return all company property on the termination of his or her employment and to enable appropriate deductions to be made from his or her salary to cover the cost of the property should the employee fail to return it. 

Employee notice

Notice is a fundamental employment right, both for employees and employers. Like employees, employers are entitled to receive notice and the amount of notice to be given by either party is determined by the contract of employment, subject to minimum periods of notice specified in s.86 of the Employment Rights Act 1996. Employers that do not wish a departing employee to work notice may decide to make a payment in lieu of notice, or put the employee on garden leave, during which he or she is not required or permitted to work. 

The Contractual rights on termination section of the XpertHR employment law manual explains the law on employers' and employees' notice rights and the consequences of breaching notice obligations, while Statutory minimum notice to be given to employers and Consequences of making a payment in lieu of notice in the XpertHR quick reference section provide an easily accessible source of information about notice provisions. 

The policies and documents section covering Termination of employment includes model contract clauses that are relevant to the notice period. For example:

There are also a number of FAQs on notice-related issues, including:

Restrictive covenants

When an employee announces that he or she is leaving, the employer's first thoughts often turn to whether or not the employee is going to work for a competitor. While pay in lieu of notice and garden leave clauses may help to protect employers from theft of customer lists and commercially sensitive information during the notice period, employers can help to protect their business by having restrictive covenants and post-employment restraints in place before an employee resigns. Run a search on restrictive covenants to reveal the wealth of relevant resources accessible to XpertHR subscribers on this subject. 

Poor performance during notice

Some employees allow their performance to deteriorate after they have resigned. However, just as employees are entitled to receive their normal terms and conditions of employment during the notice period, they can also be required to carry out their duties and obligations to the usual required standard. Although many employers may choose to ignore minor misdemeanours, employees who fail to perform in their job, or who are disruptive and undermine the morale of remaining staff, may be subject to disciplinary action. The Disciplinary rules and procedures section of the XpertHR employment law manual explains the law on taking disciplinary action. Use our model policies and documents on disciplinary procedures to help ensure legal compliance when addressing disciplinary issues.