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 applied? In which case, could an acceptance give rise to a potential constructive dismissal claim? 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 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 expert advice. Forum members should phone our helpline ASAP on 0845 130 1722 if they find themselves in this position. Not a member? Give us a call as we may still be able to help you.
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 at the centre of a 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 require careful consideration and the Forum helpline is there to help the employer to reach their conclusions. Call us on 0845 130 1722 for more information.
It's a common story; you have a member of staff against whom you are taking disciplinary action. Just before the disciplinary hearing, the member of staff resigns. Have they done you a favour? Maybe not, find out why you must tread carefully in this situation.