What is the legal situation?
Any employee who intentionally fails to turn up to work, without an intention to return in the future, has fundamentally breached the terms of the employment contract by failing to make themselves available for work.
If they have resigned without giving any notice, they are in breach of contract for not working their notice period.
Can we force them to return to work?
No. Whilst many areas of law make provision for a judge to order an individual to do something they do not want to do, employment law does not allow a judge to order someone to work at a specified location.
What can we do if an employee walks out and fails to return the next working day?
A sensible route would be to write to the employee to inform them that you are aware of their failure to attend work and asking for their reasons.
It is useful to include a date by which the employee is to reply and the consequences of a failure to reply and/or return to work. These consequences could include disciplinary action and, depending
upon what was said when they walked out, treating their absence as a resignation. By far the best thing to do is take specialist advice at this stage.
Can we sue them for not working their notice period?
In theory, yes, because they are potentially in breach of contract. However, any claim for damages would be limited to the loss you have suffered arising from their breach. In other words, you would have to show that by the employee not working their notice period, you have lost a quantifiable sum of money and that you have done= what you reasonably could to avoid that loss or to keep it to a minimum.
For example, if you had a key employee working on a contract and the deadline for completing that contract was looming, but the employee resigned without notice a month before the deadline, you might need to employ agency staff at a much higher rate of pay to complete the contract. Let’s assume that the employee was obliged to give a month’s notice under their contract of employment. In this scenario, you might have a claim for the difference between what you have had to pay the agency staff and what you
would have paid the employee who left without working their notice period.
Does it mean we don’t have anything to worry about in terms of the employee claiming against us?
Not necessarily. It may well be that the employee resigned without working their notice period because they are going to allege they were constructively dismissed.