An employee has told you that they are unhappy in their role and wish to leave your employment as soon as possible. As their heart clearly isn’t in the job anymore can you treat them less favourably than other employees?

Let’s suppose that one of your employees has informed you that they don’t like their job and will be looking to leave at the earliest opportunity – they could be a new hire or a long-serving employee. If you think that this is a heat of the moment comment, you might look to remedy or modify certain aspects of their role in an attempt to make the situation better. Whilst there’s no 100% guarantee this will work, it’s worth a shot.

More than a throwaway comment

But what if it’s obvious that the employee is no longer committed to your business – they might even have candidly told you that their “heart is no longer in it ”. In this situation can you treat them less favourably than other employees, e.g. by excluding them from team meetings and an across the board pay rise? Although it has some unusual facts, the answer to this question can be found in the High Court’s ruling in Gibbs v Leeds United Football Club 2016.

Gibbs (G) was employed by Leeds United Football Club (L) as assistant manager in 2013. At that time he had followed L’s newly appointed manager, Brian McDermott (M) – a practice which is fairly common in professional football. In May 2014 M left his post at L whereupon G met with the club’s owner. He told G that he wished him to remain at the club (instead of following M) and asked if he was interested in becoming head coach. G made it quite clear that he did not want that role and said he would be prepared to leave if a suitable termination package was offered to him.

Deal or no deal

Although there were discussions regarding a termination package, no deal was reached. G continued to attend work but was rarely given anything to do. He was also specifically prevented from carrying out his role, i.e. he was told not to accompany the first team to their pre-season training in Italy. Matters escalated when a new manager was appointed. He banned G from having contact with most of the professional players and said he didn’t want him at the club.

A breach of contract

In July 2014 G resigned and claimed breach of contract on the basis that L had prevented him from carrying out his employment contract. L argued that G had already breached it himself by proposing a termination package. The High Court found that merely raising the prospect of an amicable departure was not a breach of contract and it was “irrelevant” that G had initiated those discussions. It also held that G had subsequently been marginalised by the club and he was fully entitled to resign in response to it.

If, despite having told you that they wish to leave, an employee remains ready and willing to fulfil their duties, don’t treat them any less favourably than others and/or prevent them from carrying out their contract. On the other hand, if their performance deteriorates you can deal with that through your normal performance management procedures.

Provided the employee remains ready and willing to fulfil their duties, you mustn’t treat them any less favourably. Neither should you marginalise them, e.g. by taking away certain responsibilities or preventing them from carrying out their role. If you do, they can claim breach of contract and/or constructive dismissal.

This is a great example of when you might want or need an HR expert to come on board to help you navigate through tricky waters. Check out our range of services here >>