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Urgent help please

(121 Posts)
slithytove Thu 22-Oct-15 14:52:52

Ok.

Person under investigation. Charges unfair and trumped up, think they are looking for a reason to sack. Invite to disciplinary issued.

Person goes off sick for stress and anxiety before disciplinary happens. Person feels suicidal, diagnosed with depression, starts medication and counselling.

Person takes time off (4 months), not getting any better, company do a bit of harassment and bad behaviours in that time, person resigns.

The company have come back saying they do not want to accept the resignation, they want to proceed with employment and the disciplinary, and they do not feel the relationship has broken down.

What can we do? Person is panicking, this is triggering huge anxiety, and person just wants to get out. Can they force person to stay? Can they conduct the disciplinary and dismiss person during the notice period? Person is still off sick.

Would really appreciate any help anyone could give.

JeffsanArsehole Thu 22-Oct-15 14:59:32

Well no one can be forced to stay, that's the bottom line.

Lunastarfish Thu 22-Oct-15 15:01:56

No they can't force person to stay. Person should however give correct notice thoug

Gobbolinothewitchscat Thu 22-Oct-15 15:17:46

Arguably the person could argue that they think they have been treated so poorly that they have been constructively dismissed. That means the contract comes to an end immediately. Therefore, the employer is not obliged to make any further payments (say sick pay to the person).

If the employer truly wanted to pursue this however, they could deny that the employee had been constructively dismissed and carry on with the disciplinary process though. Employee would be paid up the date of dismissal. No notice if dismissal for gross misconduct but notice for any other type of dismissal - eg conduct/capability etc

The long and short if it is that clearly the employment relationship has broken down and the person should try and negotiate the termination of their employment along with a reference (subject to that not including anything that is misleading or false). Most employers just give a standard reference these days anyway but it would be worth agreeing something in case a prospective employer phoned digging for details.

Is this person a union member and/or do they have home insurance? Both often offer legal cover so worth finding out.

lougle Thu 22-Oct-15 16:12:55

"Charges unfair and trumped up, think they are looking for a reason to sack."

What makes person think this is true, logically, when company has declined resignation, which would be ultimate aim of disciplinary to sack them?

If person has gone off sick to avoid disciplinary, that wasn't a good move.

If person is being disciplined for a matter that involves potential criminal acts or involves notifiable conduct around children/vulnerable adults, then they'd have to notify relevant authorities if the planned to dismiss but were unable to due to resignation anyway.

slithytove Thu 22-Oct-15 20:01:33

Person went off sick due to suicical thoughts, feelings of self harm, and anxiety related panic attacks. Has resigned as GP and counsellor don't see this improving while work are still checking in etc.

During the off sick time, work harassed them. Criticising the performance achieved while off, etc.

Nothing criminal has happened. The investigation was due to some photos taken poorly and we had already proved that it was due to no training. They are looking for a reason to sack as they want to get rid of that position.

No Union or legal help.
Person has given correct notice, and offered to leave immediately if the company want.

Do you think they have declined resignation as they want to force a dismissal then? As opposed to being concerned that a constructive dismissal claim will follow and wanting to cover themselves?

Thank you for replies.

Reluctant2ndtimer Thu 22-Oct-15 20:10:03

contact ACAS or ring their helpline 0300 123 1100 tomorrow, from 8am to 8pm or 9pm on Fridays. They will give person impartial employment advice as they are a mediation/conciliation service for both employees and employers.

slithytove Thu 22-Oct-15 20:33:24

Have rang acas, they were less than helpful, said that they didn't know if the behaviour could be classed as harassment or not, or whether it was constructive dismissal or not.

Will try again.

HermioneWeasley Thu 22-Oct-15 20:35:36

They can't refuse the resignation - the employee just needs to give notice. The employer can still hold the disciplinary and dismiss in that time.

AnchorDownDeepBreath Thu 22-Oct-15 20:41:46

Yep, Hermione is right. She can work her notice as long as she doesn't rescind her resignation, but the employer can still carry out the disciplinary and dismiss, if that's the appropriate sanction. They could also disclose this during a reference - resigned whilst under investigation for gross misconduct or the like.

Has she had legal advice? It might be worth getting it if ACAS aren't convinced that it was harassment.

slithytove Thu 22-Oct-15 20:49:15

No legal advice.

ACAS wouldn't answer either way.

Would a company usually conduct a disciplinary in the employees absence as still off sick, when that employee is already leaving? That (we believe) was the goal.

Dismissal in this case would trigger an unfair dismissal claim. Accepting resignation would do nothing.

I believe that they are panicking as the resignation letter said "working relationship has broken down to such an extent that I have no choice but to resign".

AnchorDownDeepBreath Thu 22-Oct-15 20:53:33

That's a standard line for a resignation letter, really.

If they wanted her gone, they'd just accept her resignation. The fact that they haven't suggests that this isn't as straight forward as that.

I don't practice employment law, I've studied it but I don't practice it, for reference.

What are the charges she is facing? Gross misconduct?

It wouldn't be unusual for a disciplinary to go ahead when the person resigns if it's serious enough.

Gobbolinothewitchscat Thu 22-Oct-15 21:04:14

To be fair to ACAS, proving constructive dismissal can be notoriously difficult. It's ine of the hardest claims to win at tribunal as it's very fact specific.

I really would advise getting legal advice from someone who can sit down and go through all the papers etc and give specific advice.

The employer can't refuse the resignation but they can refuse to accept that the employee has been constructively dismissed. So, if the resignation is tendered, the employer could insist that the employer works their notice. And it's during that period the disciplinary hearing could take place. How long is the notice period? The employer does have to act reasonably etc and ensure that they have medical advice to ascertain whether the employee will be fit enough to attend the hearing. You can hold hearings in an employee'so absence but that decision needs to be made on the basis of medical
evidence (eg when would an employee be reasonably fit to attend) and balanced against the severity of the charges (ie must the hearing proceed immediately due to safe-guarding for example)

KittiKat Thu 22-Oct-15 21:14:38

If the employer is insisting that they work their notice and, as you have said previously, this person has been advised by their GP that returning to work would be detrimental to their health, just get a "fit to work" note from the GP to cover the entire notice period.

Nothing the employer can do about that and it covers the entire period of notice requirement.

HermioneWeasley Thu 22-Oct-15 21:24:26

The employer could hold a disciplinary in the employee's absence, but given they've already waited months it seems unlikely that they would rush to it now.

As Anchor said, most employers would just accept the resignation and the fact they haven't and you think they might still be planning to hold a disciplinary and dismiss suggests there's something else going on

Gobbolinothewitchscat Thu 22-Oct-15 21:30:46

Just because you're not fit to work does not mean you're not fit to attend a disciplinary hearing. An employer is not bound by a fit note, they can request that an employee attends an icc health interview to determine fitness to attend a hearing. If the employee refuses, then the hearing could go ahead in their absence

There's something more to this and know I've said it! I really would advise getting some legal advice as this just isn't adding up to me. Normally clients are quite happy when an rmoyer they view as a bit crap or on long term sick leave resign. It seems odd that they are determined to hold this disc hearing with the added complication/risk that the employee is on sck leave and they will also need to get medical evidence to ascertain whether they are disabled under the Equality Act/can attend a hearing etc. It's all quite messy for a straight forward conduct issue. Plus, if the issue is around not taking photos correctly, that's actually a capability issue where employer needs to look at the training given, check that health issues haven't impacted on capability etc. it's also highly unusual to dismiss on the grounds of capability without notice (can make a payment in lieu) so I can't work out what the underlying issue is. Maybe they just are receiving poor advice

KittiKat Thu 22-Oct-15 21:30:57

I know you have said the charges are trumped up, but, would the employee be looking at gross misconduct and maybe prosecution if the disciplinary goes ahead?

slithytove Thu 22-Oct-15 21:42:40

Person hasn't mentioned constructive dismissal. Just offered resignation. They have classed it as gross misconduct but it isn't. The charges are not severe either way. Certainly nothing for prosecution.

Basically a photo (as product evidence) was wrong, but they have insisted it was intentional and done to falsify records. Actually the photo was wrong as the training on how to take them wasn't done.

4 weeks notice. Person will not be fit to attend anything during that time, they are still signed off sick. GP and counsellor are very worried, hence the resignation. Occupational health have not certified them as healthy enough either, despite pressure from the company.

I think they are worried the person will bring a claim for constructive dismissal. Their immediate boss has done some very stupid things. They are insistent the working relationship hasn't broken down and that "no decision has yet been made as to the result of the disciplinary" and they are keen to proceed.

I just don't get why the company wouldn't let them leave otherwise. They don't benefit at all from continuing a disciplinary or a dismissal.

slithytove Thu 22-Oct-15 21:42:58

Really, really appreciate this help

onlywhenyouleave Fri 23-Oct-15 07:24:57

I agree with others that there must be more than meets the eye with this. It is a far greater risk to continue with the complex situation than to just accept their resignation.

In my experience, disciplinary cases tend to only be pursued in these circumstances that there is something on the file to state they were dismissed rather than they resigned (for future reference purposes). However, the allegations do seem quite minor to go to these extremes.

lougle Fri 23-Oct-15 07:50:58

Would the employee have benefited in any way from the (potentially unintentional) misrepresentation that the erroneous photographs portrayed?

TheGirlFromIpanema Fri 23-Oct-15 08:04:06

I'd be wary of going back in these circs tbh, even without the added stress of anxiety related illness.

They might be trying to head off a tribunal claim by "refusing" the resignation; but if the employee feels the realtionship has broken down to such an extent that they felt unable to return, then it probabably has sad

lougle Fri 23-Oct-15 08:23:05

Alternatively, the employer could well be telling the truth and is duty bound to discipline but values the employee. The employee hasn't given the employer a chance to show that because they've gone off sick. Whilst it sounds like the employee is very stressed, it isn't unusual to be so in the circumstances and it's relatively common for people to go off sick to avoid disciplinary action.

slithytove Fri 23-Oct-15 10:47:47

They are saying the employee used the photos to claim there were more products than there were, meaning their results looked better, meaning their bonus was higher.

BUT. the photos which were taken wrong, half were beneficial and half were the opposite. Plus, the measure they say he falsified, doesn't come into bonus calculation.

It was 100% unintentional.

The immediate manager does not value any of his employees.

The employee was stressed before the invite to disciplinary, they had no support in their new role, this was the nail in the coffin.

I'm really hoping this is HR trying to cover their backs.

Today an email has been sent by employee stating all the reasons they feel the relationship has broken down, and that their resignation stands, and if the company would like, they would like to come to a settlement agreement so employee can leave with positivity on both sides.

Fizrim Fri 23-Oct-15 11:16:02

I used to work in HR, and I think I remember a previous post about this matter. Agree that you haven't been given (or are considering) all the facts.

It is certainly not unknown for employees to go off sick when issued with a disciplinary. What discussions did the person have with the company before they went absent?

IIRC, the situation came about because instructions had been ignored. That is a performance/conduct matter, the bonus is most likely to be gross misconduct (for which they can dismiss immediately - but haven't).

So if it is the previous post that I'm thinking of - employee has ignored instructions and made a mistake for a period of time that could be considered to have falsified records, which may have affected employee's salary. Company have gone down the disciplinary route (as it may well come under gross misconduct) but the employee has gone off sick and refused to discuss it. They could probably have dismissed but didn't and have waited for four months - that seems fairly positive to me, but you don't think so?

Hope it gets sorted soon.

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