Laura Chalkley, head of team at employment law specialists Ellis Whittam, discusses resigning during a disciplinary procedure.
Recent events have thrown up the question of what happens if an employee resigns in the midst of a disciplinary procedure.
It has been widely reported that former Oxfam director, Roland van Hauwermeiren, resigned from his post before the investigation into allegations of misconduct had ended. He went on to hold a senior position at another aid charity. It was revealed that the reasons for his resignation were not disclosed to his new employer.
So how should a charity respond to an employee’s resignation in the middle of a disciplinary procedure?
Even though you may not want to, you cannot reject someone’s resignation if they have provided you with the appropriate amount of notice. Notice periods should be laid down in the contract of employment or, if there is no provision in the contract, it should at least respect the statutory minimum of a week. You should ask the employee to confirm their resignation in writing.
Should you continue with the disciplinary procedure?
Whether or not an employer should continue the disciplinary procedure really depends on whether the employee is resigning with immediate effect or whether they have resigned with notice. It may also depend on the length of the notice period and the time and effort that can be saved.
If an employee resigns providing notice, you should continue the process. They may have committed an act of misconduct which is quite minor and only results in a warning; therefore there will be no repercussions on the individual. However if the disciplinary process finds the employee has committed an act of gross misconduct, they can be summarily dismissed. This will supersede their resignation and the reason for the termination of the employment relationship will be deemed as dismissed for gross misconduct, rather than resignation.
If the employee resigns with immediate effect, you are unlikely in most circumstances to need to continue the process. However, you should keep notes of the disciplinary procedure in case the employee then decides to lodge claims with an employment tribunal. In certain circumstances, for example when there is a safeguarding issue, you may still need to reach a conclusion on the basis of the evidence you have and make it clear to the former employee that the process will still continue and give them opportunity to respond.
What do you have to include in the employee’s reference?
One of the main reasons employees decide to resign when facing a disciplinary process may be that they are hoping it will give them a better opportunity for a good reference.
Some exceptions do apply, but in general, there is no duty imposed on employers to provide a reference to a former or current employee. If you do provide a reference, you must ensure that the information you supply is fair, truthful and accurate and is not misleading.
In the case of Bartholomew v London borough of Hackney, an employee took legal action against his employer for negligence after they gave him a reference stating that he has been suspended for alleged gross misconduct. As a result of the reference, the job offer from a prospective new employer was withdrawn.
The court of appeal ruled that if the employer had not mentioned the disciplinary proceedings that were pending against the employee when they resigned, they would have failed to provide a fair, truthful and accurate reference. It also made clear that the reference does not always have to be full and comprehensive, but it does need to be fair. In any case, it is advisable that to keep references as short and factual as possible.
To explore this further, call 0845 226 8393, ask for the Partnerships Legal Team and quote your ACEVO membership number.