The recent Scottish Employment Appeal Tribunal ruled that an employee who submits a resignation on proper notice is not entitled to withdraw it. In tendering their resignation an employee is asserting a right – they are not making an offer which needs to be accepted before it can be effective. When, following such resignation, the employer hires a replacement who is available to start work before the notice period has expired, putting an employee on “garden leave” does not amount to a dismissal. Resignations tendered in accordance with the employee’s contract are not offers which require acceptance; they are simply instances of an employee asserting a right which exists under the contract. While decisions of the Scottish EAT are not binding in England and Wales, it is unlikely that an English Tribunal would decline to follow the decision.
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