One of the frequent questions we receive from employees who are the subject of disciplinary action is whether they should resign rather than go through the disciplinary process. This is not an easy question to answer or an easy decision for the employee to make as there are many considerations. If you would like help, please call us for a free, no obligation, telephone consultation on 01522 440512. Alternatively, for more information about your choices when subjected to a disciplinary process, read on.
What Are The Disciplinary/Misconduct Allegations?
When you are accused of misconduct, often the first reaction is panic. Also, the fact of the accusation can lead to an expectation that dismissal will follow. This is not the case. In a fair disciplinary process, there should be the first step of gathering information. That information may well result in the matter ending there and then if there is no evidence to show there has been any act of misconduct.
Even if there is evidence in support of misconduct, it does not always follow that the disciplinary hearing will find dismissal to be the appropriate sanction. There may well be mitigating factors that mean the employer is willing to deal with the disciplinary matters by way of a warning or similar.
Therefore, before taking any decision about whether or not to resign, it is important to get as much information as possible about the allegations, what evidence has been gathered, any factors, and what the outcome is likely to be.
For more information about disciplinary processes, please see our website at https://lincslaw.co.uk/services/employees/workplace-problems/defending-disciplinary-allegations/
Disciplinary – Is It Better To Resign Or Be Dismissed?
In some circumstances, particularly if you are aware that you have committed some serious misconduct and it is likely your employment will terminate, there may be advantages to resigning before there is a dismissal on your record. However, resignation should be considered as the very last resort.
Before getting to the stage of resigning, it might be best to open up without prejudice negotiations and/or have a protected conversation with your employer. To explain, any correspondence or communication which is marked as without prejudice or is part of a protected conversation cannot be referred to in any future Employment Tribunal litigation. The purpose of such communication is to facilitate a deal or agreement between employer and employee by enabling frank negotiations to take place without the fear that it might be used against them at a later date.
This is in contrast to open correspondence, for example correspondence in the disciplinary process, which the employer would want to rely on if the matter was ever to reach an Employment Tribunal. Any defence or interaction with the disciplinary process should be open correspondence as you may also wish to rely on it at a later date. However, any suggestion that you might be willing to resign and do a deal to facilitate your exit should be on a without prejudice basis or in a protected conversation so that this does not impact on any future possible Employment Tribunal claim.
If you are genuinely considering resignation, you may find that if you open up negotiations as above, your employer will be willing to reach a deal with you. What that deal is will largely depend upon the seriousness of the alleged misconduct and the weight of the evidence. However, it is a better way of bringing matters to a close than simply resigning (see below). If you would like help, please call us for a free, no obligation, telephone consultation on 01522 440512.
What Would Happen If I Resigned During The Disciplinary Process?
For most people, the motivation of resigning will be to try and bring an end to the disciplinary proceedings. However, that outcome is not guaranteed.
Some employers may well decide not to progress any disciplinary if an employee resigns. However, for many employers, especially where there is a safeguarding element (working with children, vulnerable adults etc) or there is a professional regulatory issue (GMC, HSPC, SRA, TRA etc) they will need to complete any disciplinary investigation or process even if the employee has resigned. This could lead to an even more difficult situation where the employee could have forfeited their ability to engage with the internal disciplinary process, meaning that the disciplinary goes ahead without their being able to defend themselves. Any subsequent referral to regulators, DBS etc, will be all the more difficult to challenge.
Can I Resign And Claim Constructive Dismissal?
For many employees, the motivation to resign during a disciplinary process is because they want to make a claim to the Employment Tribunal for constructive unfair dismissal. We would always advise those clients to think long and hard before taking such action.
Firstly, in an “ordinary” unfair dismissal claim (ie when the employer has terminated the employment relationship) the burden is on that employer to prove any dismissal was fair according to the statutory definition. This would be the situation for a disciplinary dismissal and, so, if the objective is to challenge the employer’s actions at the Employment Tribunal, the employee may well have a stronger claim by going through the disciplinary process. For more information about unfair dismissal, including qualifying length of service etc, please see our website at https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/unfair-dismissal/
By contrast, if the employee resigned (which means they terminated the employment relationship) the potential claim would be constructive unfair dismissal. However, this is a very different claim. For constructive unfair dismissal, the employee would have to prove that there had been a fundamental breach of their contract of employment. Further, that they had resigned in response to that fundamental breach and had done so without unnecessary delay. Given that, for most people, the disciplinary process and procedure will form part of their contract of employment, the employer initiating such a procedure will rarely be a fundamental breach of contract. For more information about the necessary steps for a constructive unfair dismissal claim, please see our website at https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/resignation-and-constructive-dismissal/
Lincs Law Employment Solicitors Can Help You
If you are going through a disciplinary process, please call us for a free, no obligation, telephone consultation on 01522 440512. We know how difficult a disciplinary process can be and we want to help. Alternatively, for more information about Lincs Law Employment Solicitors, please visit our website at www.lincslaw.co.uk
Sally Hubbard,
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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