A not infrequent question put to the advice service is the question of an employee resigning either just before or actually during a disciplinary hearing.
How is it best to deal with such a situation?
Could an acceptance give rise to a potential constructive dismissal claim?
Whether the resignation occurs before, and especially when it occurs during the disciplinary hearing, it is invariably best for the employer to allow the employee some time to consider the decision to resign. Is it a hasty decision? Will it look as if pressure has been brought to bear?
The employer should give the employee a period of reflection. If the employee is determined to proceed then the employer should accept and confirm that acceptance in writing setting out clearly the position and the circumstances in which the resignation was accepted.
However, there are times when a simple acceptance does not deal with the position. If the employee is facing charges of gross misconduct, which may lead to a summary termination of employment, it would not always be wise for the employer to accept a resignation with notice from the employee. In these circumstances there are probably two outcomes:
- The employer accepts the resignation but considers proceeding with the disciplinary which may then result in summary termination or a warning or;
- Make it clear to the employee that the disciplinary process will continue and that the only way for that not to occur is for the employee to tender an immediate resignation which may be accepted.
It is a difficult decision for the employer and one which requires careful handling. Each situation is slightly different and that is why it is so important to seek and follow advice from the advice service.
Employers in the care sector have an additional consideration where they are faced with an employee resigning prior to the outcome of a disciplinary process and that is the question of Protection of Vulnerable Adult (POVA) referral. An employer should refer the employee for potential registration where the resignation occurred in a situation where there are grounds to believe that the employee has committed an act that might harm a vulnerable person. So even a resignation does not stop the process because if the employer is satisfied following a careful investigation of the facts that there are grounds to believe that such an outcome could have occurred if the disciplinary had proceeded, then a referral must still be made.
These are clearly issues that frequently require careful consideration and the advice service is there to help the employer to reach their conclusions.
Further information on the changes will be available on this web site shortly. In the meantime if you need assistance with regard to contract changes contact Qdos Consulting on 01455 850000 or contact jstringer@qdosconsulting.com
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