Nursery World - Childcare Counsel (1)

Our resident employment lawyer Caroline Robins, principal associate at Eversheds, answers your questions

Q Can a nursery employee be treated as having resigned if she has not turned up for a number of days?

A The failure of an employee to attend work does not necessarily amount to a resignation. While the approach of some employers is simply to treat the absence as a resignation, there is legal risk associated with this, particularly in relation to employees with two years’ service or more who qualify for the right to claim unfair dismissal.

For an employee to resign, they must usually give clear and unambiguous notice of the termination of their employment. In the absence of this, an employer treating an employee as having resigned and therefore bringing their employment to an end may be considered as having dismissed the employee. Since no disciplinary or other process has been followed prior to such dismissal, the dismissal is likely to be deemed unfair.

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