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Being “ghosted” by an employee

What to do when faced with an employee who resigns with immediate effect

21 January 2020, at 9:00am

The recruitment crisis within the veterinary profession is well publicised. Most practices have first-hand experience of coping for months whilst being shortstaffed, usually a result of the struggle to recruit a suitable vet to fill a vacancy.

With the imbalance between demand and supply, competition for vets is fierce. Vets often hold the upper hand in the recruitment process, leaving practices in a weaker bargaining position to meet increasing salary demands or being let down by a candidate who accepts a more attractive offer late on in the recruitment process.

Against this landscape, a common oversight is the difficulty caused by inadequate protection against employees exiting the practice at short notice. With the exception of probationary periods enabling short notice of termination, many veterinary practices are reluctant to request longer notice periods from employees. Misconceptions around the length of notice employees can be asked to provide are frequent. One wrongly held view is that the notice period to be given by the employee has to reflect the frequency of pay (ie a one-month notice period for a monthly paid employee).

For a busy practice with a full appointment book, having short notice of being a vet down will cause significant difficulties. It does not leave much time to advertise, recruit and offer the vacancy. The replacement recruit will likely need to work their own notice period.

In view of this, many smaller independent practices are following the example set by corporate veterinary providers and other professional sectors to require employees to provide longer notice of resignation. For veterinary surgeons this is commonly three months, with senior clinical and practice staff (eg clinical director or practice manager) being six months. This enables a greater transitional period between the exiting employee leaving and the recruitment of a replacement. It also allows greater planning in the short-term coverage which may be needed from colleagues.

But what if the employee doesn’t provide notice at all and leaves the practice completely in the lurch? Being “ghosted” by an employee who fails to give any notice of their departure is a highly disruptive scenario for a practice. The most common short-term fix is locum cover, which in itself is fraught with unreliability, rocketing costs and sometimes clinical quality concerns.

Putting to one side causes of employment litigation associated with sudden terminations of employment (constructive dismissal claims, ill health leading to claims of work-related stress conditions), practices can feel powerless in their response to an employee resigning with immediate effect with no logical explanation. Whilst an employer cannot compel an employee to perform their duties for the notice period, the remedy available to a practice in this situation is to sue the employee for breach of contract.

In assessing the value of a claim the court will consider the actual losses suffered by the practice, commonly the aforementioned locum fees and recruitment costs. The first consideration is whether there is a suitably worded deductions clause in the employment contract, to enable a deduction for costs attributed to the employee’s breach of contract to be deducted from the departing employee’s final salary. If so, exercise it to recover some of the costs at an early stage.

In the absence of a deductions provision, or where the costs to the practice are in excess of the final salary payment, dispute resolution procedures and potentially litigation are the next course of action.

In determining the benefit of bringing a claim of this nature against an employee, it is important to assess the employee’s resources. Can they fund an award of damages? If not, there is little point of incurring the cost of legal action.

There is often value in pursuing a claim where the new employer of the departing employee is involved and can be cited as encouraging the employee to terminate their employment without adequate notice. They will likely have deeper pockets to fund any award. However, evidence will be required to demonstrate the new employer was complicit in inciting the employee to breach their contract in a bid to join the new practice more quickly. That may be difficult to come by, particularly if the new employer and the employee were mindful of a potential legal action and avoided creating a paper trail.

The overarching issue is to ensure the contracts of employment reflect the needs of the practice – in terms of length of notice required by employees and to enable practices to deduct the full or partial costs associated to the employee’s breach of contract from final salary payments.

If you have any specific questions on this topic please contact Stephenie Malone by email at smalone@hcrlaw.com