crap - decided probably going to resign but called to disciplinary meanwhile, v stressed help

[Bitofalurkerreally]

This is v v long and dull but I would really value advice - put it this way I'm looking for a speedy closure not a battle / industrial tribunal!

Admitted to hospital on Saturday, husband informed work on Sunday that I was ill. (LOL - I said to my husband I now felt I had to leave work!)

Returned home Tuesday evening, and discovered Wednesday that I had been summoned to a disciplinary hearing the day before which I had known nothing about, as had been in hospital and not seen post/email

The disciplinary is a bit questionable and doesn't follow precedent, I think after my last month long sickness they have been attempting to 'build a case" as such. Unless I went it to battle big time it would be an awful thing to try a dispute + it's a family business so...... I am guilty of some of the alleged mistakes but these kind of mistakes happen all the time and have done since I started, without anything more than passing comment being made previously, in fact such errors when made by me or others are often joked about!

Saw my GP and signed off sick until 7th May ( for now)

Contacted work by e-mail to apologise that I had not been aware of disciplinary meeting, had been signed off and could we re-arrange disciplinary for when I was well. I requested a copy of staff handbook / discipline/grievance procedures -( none of which I have seen or heard discussed within the business since starting in 2006)

Work replied saying of course they would re-arrange meeting, sent appropriate documents ( updated Sep 2010) and would now look to have a 'return to work' meeting before arranging a date for disciplinary.

I have spoken to a solicitor, there is a huge amount of 'things not done' as employers, and this disciplinary is the first time in 5 years they have done anything 'to the book' - e.g. no appraisal, no work objectives etc. There is almost definitely at least a grievance case I could pursue, I simply don't want to if I can help it. I simply want to move on, amicably and with some possibility of a reasonable reference.

Background: Employed since 2006 part-time in a very small business, have always been a good employee, in fact very well though of in past, never had any disciplinary action previously. Took second maternity leave just as new owners took over and what had been a very 'laid back' approach to management etc became even more so under new regime, for my point of view there was/is much lacking in terms of management, direction, professionalism, support etc. there are loads of working condition issues etc.too

Returned Sep 2010 and since have had awful but legitimate sickness record since and TBH I want to resign because I am not comfortable with impact on the business, and professionally / personally it just doesn't sit well to be absent this much.

So basically I am happy to 'fall on my sword' as such but now am concerned that I can't resign because of this surprise disciplinary situation ( solicitor doesn't think disciplinary could lead to anything more than written notice on file).

My employer will now be ( due to third party's recent interest) well versed in Employment Law

I don't want to go back to work ( except after all is done with, to smile sweetly, say goodbyes and return any papers, keys etc.)

I don't want to attempt to go on long term sick and want this resolved so I can move on.

I don't want to go into battle / grievance route

I do want to resign, give shorter than contractually obliged notice ( with willing financial compromise if necessary) and conclude/deal/dismiss disciplinary issue with their agreement

Am guessing a reference is not going to happen now (so sad after all I have achieved for them) but I do need to avoid a 'resigned prior to disciplinary' statement being made in future.

The crazy thing is I want to leave, they want me to leave, only they probably won't believe I want to leave ( I am passionate about the business) and I can't trust them not to be vengeful.

I can't really afford to engage the solicitor and it seems crazy when my employer and me actually want the same thing - it's just I want to hold my head up high, get a reference, they can keep the money they owe me and feel like they 'won' I don't care.....

Sorry so long and rambling

What do I do please?

Just resign then!

Hello! Sorry things are difficult for you.
Is there someone in HR that you can talk to? I would approach them and ask to speak with them and be honest - say that you appreciate their position and would like to resign but only if they will agree to supply a reference. That you are not really in a position to work effectively right now because of your health but hope to be able to return to the workplace when you are recovered.
There is nothing really to stop you resigning and it seems the sensible thing all round.
TBH these days a reference is a pretty minimal thing.

If you really do want out - and do think long and hard before you up and leave - you could try to negotiate a settlement package. This would be good for your employer as it would be saved the cost and risk of going through disciplinary and potentially sickness absence management. If you raise this, do so on a "without prejudice" basis - just ask your employer if you can speak "off the record", then basically tell them an edited version of what you've told us.

Your solicitor hasn't given an indication that you have any claim, from what you have said in your OP I would say the same. Therefore, be realistic about what they might pay you. Garden leave plus an agreed reference is probably not out of the question, particularly if your employer is taking advice.

I can't see how you have any right to a "settlement". If you have done things which warrant disciplinary action as you admit to in your op then in that scenario, as an employer, the best I'd do is let you leave without holding you to the notice period.

Ie that I would allow you to leave as long as you waived your right to paid notice, as it was at your own request.

There's no "right" to a settlement but there's a dispute and it's up to the parties whether they choose to settle it. The situation as described in the OP is that they want her out. She hasn't done anything that merits automatic dismissal, so if they want to get her out it will cost them in management time, possibly legal costs, they risk going about it in the wrong way, or OP bringing a nuisance claim. It'll take 6 months to exit her properly, in that time they could have trained up someone else and put this all behind them.

Of course the employer might not want to buy a quick fix, it might see the situation as you describe, hairy. If OP goes down this route, she has to be resolved to the fact that it might not work out and the relationship will be irreparably damaged, such that it will be almost intolerable to stick it out through any disciplinary/performance management. But why should she just walk away empty handed?

Thanks everyone for your input, it is helping and I am aware that I sound rather pathetic at the mo, if anyone can be bothered to read on - thank you

This is a very very small company i.e. I report to the owner and her husband, They have avoided all attempts since I returned from maternity leave in September 2010 to have a meeting to set out role objectives, targets etc. with me despite repeated requests and a desire to see things done properly on my part........In this time they have been pleasant but always frustratingly unforthcoming and vague.

During maternity leave they made no contact with me, I instigated it all and despite them being new to the business refused all offers from me to help with meeting, planning etc. The day I returned from my maternity leave ( having reminded them again by telephone I was doing so) I turned up to an empty building, a dirty desk, no meeting, no handover documents and a boss who walked in 2 hours later and looked like she couldn't believe I was sat there working.

There has long been a sense of wanting to keep me 'away from things'.....

I re-arranged a hospital appointment so it didn't fall at a business critical time, when I came to take the appointment and spoke to my boss to remind her and check it was ok to have the afternoon off unpaid she said "Do you need to bother coming in that day at all? I can just get xxxx in......" xxxx was not being paid at the time (she is in fact the landlord's wife and now back working in the business, recently in a paid capacity). My boss has regularly has offered to cover my hours and told me not to worry if the kids are ill etc. something I have always tried to decline. When I have been off sick the first question on my return is usually "How are the kids?" - I make every effort to get to work even when I am ill, I am paying a childminder and essentially am lucky to actually make £200 a month after childcare

I am paid by the hour ( in fact to the nearest 15 minutes)
I get no paid sick
I get no paid breaks

It's not a progressive working environment........

In terms of me looking to a grievance claim, there are various issues regarding contractual changes, working conditions, communications, procedures, lack of appraisals etc. that I have discussed with a solicitor and may constitute a claim. There is also a host of anectodal stuff that points to a desire for me to 'go away', which I feel has escalated since my last sick absence.

Whilt I am guilty of some of the errors that my employer wishes to look at during the disciplinary these type of errors have been made by me, my colleagues and herself over the last few years and no one has ever been even firmly reprimanded nevermind brought to disciplinary - put it this way last week we were laughing at a colleague who regularly make such mistakes. I am willing to accept that they may wish to tighten up and feel a disciplinary necessary however I have no role guidelines, there seems to be no precedent. I was not issued / made aware of with a revised handbook which I now learn was revised just before / after I returned from maternity leave...........

The other issue is my boss and I probably have some different working practices I guess and as we've never spent any time together to discuss and formalise some of the things she is now saying are wrong as such, despite the fact that I haven't really changed my approach much since starting in 2006.

During my maternity leave which coincided with them taking over the business, the owner fulfilled my role herself or with unpaid help - their perceived value of me on my return is therefore questionable, especially as there has always been an unwillingness to discuss or plan what it is I am supposed to be doing. I am also the highest paid employee in the business but feel that my role/responsibilities has been diminishing since I returned from maternity leave.

Seriously I understand them wanting me to go away, I've had an awful sickness record in the last few months, I came back from maternity leave when they had been running the business for nearly a year and had to start paying me more than anybody else, when they hadn't been paying anyone at all, I am passionate and like to make plans - which doesn't sit well with their business approach. Their daughter also appears to be looking for a new job and they are now paying a part-time Marketing Manager who happens to be the landlord's wife (she had previously been involved FOC).

There may be enough in law to protect me and make some sort of counter claim and there may be enough in law for them to discipline me but in reality I'm a part-time working mother who is has a bad sickness/absence record and is not valued or wanted by her current employer - I just want a dignified exit

I think I'd like to attempt to amicably resolve the situation with my boss through careful informal contact ( probably by e-mail as I'm still poorly and telephone could take days to get a hold of one another) and tender my resignation as a solution to the sickness s and it's possible impact on the business. I am willing to compromise on notice, monies owed, holiday pay etc. ( they really are tight-fisted and I need to make it easy for them, without totally losing my self-respect of course).

My key worry in all of this is having to ask to 'drop' the disciplinary, as I am aware that resigning with a disciplinary pending can be a foolish thing to do. I am happy to offer to assist with any queries they may have regarding the issues raised informally etc......

Sorry to drone on but if anyone can advise how best to approach this sort of situation informally without jeopardising any formal future potential counter claims etc. should they decide to be difficult I'd be very very grateful.

The money is important but not as important to me as leaving partly on my own terms, seemingly by happy mutual agreement and without a contrived disciplinary on my file.

I should add that I am fairly confident that my GP would be happy to support a longer term sick note

I think i would be inclined to write a "without prejudice" letter and state the main issues and what you are looking for, ie a paid notice period, all mention of disciplinary removed and you go away quietly.
I would word the letter to set out the thing that the Solicitor has told you about the various issues but state that you do not want to go down this route but you could if necessary

If u genuinely do want to just walk away I would recommend resigning getting your sick note extended to the end of your notice period due to the stress of the situation never having to return or face the reconvened disciplinary. I personally think from what u have said about them by tring to suggest a compromise agreement through a without prejudice approach will be unsuccessful, cause more unpleasantness and u having to return to work in that environment. They are obliged to pay u outstanding leave regardless of situation and I wouldn't worry about references as companies r so risk averse these days they only provide factual data I.e start date end date title etc which basically renders them not worth the paper they're written on.

If their decision to proceed to disciplinary is inconsistent with the treatment of others it suggests they will not treat u reasonably and you are
Better of out of there asap but of course only you know the full story and how they may react. Good luck whatever u decide.

I read it that the op wants out, not that the employer wants the op out.

You really do sound like the one with the problem here. You haven't actually said anything which looks Like they've done anything wrong ... But you've outlined a terrible sick record and some mistakes you've been picked up on that you admit to.

The dact that the owner covered your ML herself would strike me as it being of high value.

KIT days are your choice to do or not do... They have allowed you peaceful enjoyment of your Ml rather than contacting/hassling/harassing you.

" and tender my resignation as a solution to the sickness s and it's possible impact on the business. I am willing to compromise on notice,"

It would be them compromising on notice ... By wanting to leave sooner than your notice period, if they allow it they are compromising to suit you.

Being paid by the hour, statutory sick leave and unpaid breaks are pretty normal actually.

Unless I'm misinterpreting, you sound really quite entitled.

Hi thanks everyone for your feedback, especially hairy, it's good to be challenged when looking at such situations.

At the moment I think am going to try an informal approach, they are not unpleasant people and as I stated in the beginning I don't actually feel comfortable with my own level of absenteeism and decided to resign last weekend when I was taken into hospital, unfortunately they made the disciplinary summary meantime and turned what should have been a simple decision into a more complex one. I am quite satisfied in talking to my solicitor that at best they could achieve a written notice on my file, and I would be in a position to pursue grievance over other issues and possibly this action too should it go that far.

I have been a small business owner and my husband is one still, I do not feel they 'owe' me very much at all TBH (despite having let me down badly in many ways, some of which I think has had more to do with inexperience rather than anything else), and actually I do feel guilty and stressed for having let them down due to my sickness.

My integrity is important to me, as is the contribution I have made to the business, hence wanting to leave and to leave well and not because they felt desperate enough to manipulate / manage me out when it was already clear to me that that I should leave.

I've read everything you have written very carefully and TBH they sound like reasonable employers to me. All that I think has happened is that as they have grown the business they have realised that having a very laissez-faire attitude to business might be counter-productive so they are belatedly trying to sharpen things up and this is how the disciplinary has come about - I imagine they mentioned things but you perhaps didn't realise how serious they were about changing things and so didn't adapt - you have said yourself that you have been doing things the same way for 5 years so perhaps didn't realise that you did need to change as soon as they asked you. Hence they probably got frustrated when you didn't change and hey presto, disciplinary.

Unless you have any specific instances of ill-treatment that you haven't already mentioned, I don't think you have any grounds at all for a grievance, although you may have grounds for appeal against a disciplinary.

The way I'd play it is to send a brief email setting out that although you love your job and are passionate about their business, you are finding it very frustrating to also deal with your illness and that you are considering taking a break from paid employment for a while. You are concerned however that the current disciplinary might affect your references should you seek further employment when you return to the workplace. Ask for a meeting where you might be able to discuss with them a suitable notice period and perhaps reach agreement with regard to removing the disciplinary summons from your records and also with regard to future references. Then see what they say.

Agree with squiffy. I'm glad I'm not the only one who can't see anything in OP's post that would warrant a grievance, thought perhaps I was missing something.

And FWIW the disciplinary meeting should really be a meeting to discuss the issues, unless it's a gross misconduct issue, they should not have yet decided what level of warning, if any, to give.

So it's not a foregon conclusion from receiving an invitation to a disciplinary meeting that you will end up with anything on record.

I find it difficult to see what your legal claim might be from what you've said; things like being paid by the hour, not getting sick pay, not getting paid for breaks are all very very standard, and not having appraisals isn't great but is by no stretch of the imagination illegal; neither are a lot of the other things you mention. You say it's not a progressive working environment, but there's nothing wrong with that legally obviously. Lots of businesses are really rubbish to work for and lots of people dislike their jobs but that doesn't mean those businesses are doing anything technically wrong.

I think talk of negotiating a 'package' is a bit premature. All that's happened so far is that you've been invited to a disciplinary hearing regarding some mistakes you've made, the meeting has been rearranged at your request due to your sickness absence and your work has confirmed they will follow good practice and have a return to work interview before progressing the disciplinary. All sounds fine to me.

In any company there are going to be people who the employer would quite like to resign in an ideal world. But there is a huge jump from:

'it would be really quite handy and make life a bit easier all round if bitofalurker resigned'

to

'we are so desperate to get rid of bitofalurker and either a) we have a legal case looming because we are trying to dismiss her and have cocked it up or b) we have loads of money to chuck at it, and she is such a massive disruption and drain on the business it's worth paying her off

Most people who are subject to disciplinary action, (if they come on to that scale at all), it will be right at the bottom 'wouldn't it be nice' end of the scale. The balance between the two scenarios will change obviously depending on the organisation, its size and the amount of money they have. In my experience, small business owners are more likely to be highly peeved if someone who they are disciplining asks them for cash to go away

You say you don't want to bring a grievance and you don't want to go back to work, fine. I think Squiffy's suggestion sounds good. You need to communicate to them that you would prefer to resign but are concerned about the pending disciplinary investigation so would like to discuss the possibility of dropping that so you can resign immediately with a clean record.

Hi all

Thanks very much for your replies I really am not feeling terribly well and am aware my judgement is a bit skewy so your comments have really helped.

I am inclined to agree with most of your recommendations and really just want to resolve this situation quickly, efficiently and with as little disruption to my employer and with as little stress as possible to myself.

I do think they would prefer that I no longer worked there (and I don't blame them for this) and I also accept that it is possible they just want to improve working standards and practices. Without going into masses of rambling anecdotes and various personalities and possible agendas etc that I have discussed with my husband, who is a sound judge of such things and who certainly would be quick to pull me up if he thought I were misguided, it's difficult to convey the personality/ culture of the business. I have some faith that my assessment of the situation is reasonably accurate.

In truth I have little faith in my health for the near future as the last few months have been 'odd' for me to say the least and am concerned that even if we were able to positively move forward from the current situation my health could not be trusted to let us both down again. I think a break from paid employment is probably best and had genuinely discussed and agreed resigning with my husband before I received notice of the disciplinary.

I have no desire to look for 'cash' from the situation, in fact I'd be content to walk away with nothing ( except for the disciplinary summary being dropped so as to assist with future job hunting etc.), at best I would hope they would be willing to pay me for the hours already worked and my holiday accrued in lieu of my notice. At the moment I am signed off sick so they are already having to 'cover' my role although they are not paying me - surely it would be better for them to know they need a permanent solution rather than to continue 'covering' what could be a long term sickness.

Thanks again

I imagine they would probably be willing to drop the disciplinary, pay you money owed and get their permanent solution, however it may depend on what the disciplinary issues are. If someone resigns in anticipation of being sacked, the employer is unlikely to drop anything at all as I'm sure you appreciate. If it's something fairly minor and they are not remotely in a position to dismiss for it, and they quite want rid of you anyway, that's a different story and they might be more amenable to dropping the disciplinary.

The disciplinary is not for very serious offences and is unlikely to lead to dismissal, it's more a case of "you've made some error's, we're not happy you need to stop making errors"and probably putting this disciplinary notice on file for a month I think although I cannot in truth be sure as there is no precedent and no written guidelines for me to consult.

Do remember if you resign that they can make you take leave within notice period, rather than make a payment in lieu of annual leave accrued.

Also - if you resign you won't be entitled to any unemployment benefit.

It doesn't sound as if they are organised enough to put anything 'on your record'!

Just hand in your resignation with immediate effect and get on with your life!! References are useless anyway.

I have some issues with the OP has been dealt with regarding her return from maternity leave and possibly also what looks like it might be disciplinary for capability without any formal capability management first because these things should not be a surprise and should apply to everyone.

That said what the OP would be awarded from a tribunal (based on the info here) is likely to be zero to minimal because she's out of time on the maternity side of it and the capability management stuff is unlikely to lead to dismissal so she has no damages to be compensated for.

OP, from what you've said it sounds like you want out and your health is such that the less stress and aggregation the better. I would do as suggested above and write a "without prejudice letter" - make sure you put that clearly in bold and underlined at the top of the letter, either after Dear xxxxx but before the first paragraph of text or under the date above Dear xxxxx. I would state that you wish to resign but that you are concerned about the pending disciplinary action that you feel is unfair in light of no formal capability process and that you are the only colleague asked to attend disciplinary proceedings despite your performance, from what you have observed, being similar to others. You therefore feel you cannot resign at this time due to the pending disciplinary proceedings but if they were to review the situation and decide that holding disciplinary proceedings is not necessary you would happily tender your resignation as you feel your continuing ill health and consequential absences is not fair on either them or you.

If they agree to it you may want to ask them if they would write you a reference you can use in the future and make it sound a positive thing for them (less disruption in the future for them when you start applying for new jobs) but it's also a good insurance policy for you.

I think your primary aim has to be a quick exit and reasonable reference and hopefully the above advice will help you do just that.

Gawd, apologies for awful typos and grammar. Am on iPhone with sausage figures and only half a brain apparently!

Thanks so much, I'm feeling quite isolated on this so your advice is very welcome.

Tracey and Hairy thank you for hi-lighting the points about benefits and notice

Katie - I think you've given me some good advice, especially if this 'process' takes a couple of pieces of negotiation to resolve. Initially my hope is that they will just seize the opportunity to let me go quietly.

If not then I will have to re-visit my position, probably then explain that I will not be tending resignation with a disciplinary pending and look to dispute the action of instigating a disciplinary rather than just the exact contents as such, when there is no written or clear job specifications, objectives, there is lack of capability management as Katie put it etc. I will be expressing my surprise and sadness at the disciplinary summary and at not being able to formally resolve such issues previously to improve performance and working practices in my initial correspondence.

I have a unique role as do all my colleagues, it is a very small business but you do wonder when one colleague can call another a 'cock' , directly ignore a managers request, bawl another colleague out, not say please or thank you to five customers in a row and get away with it, how I can make genuine commonplace human errors which I and others have made for years with no guidance, training or standards written or clarified and despite asking them constantly what it is they want from me , have continued to grow their revenue and perform well otherwise (when I haven't been off sick) end up being the first person under these owners to be subjected to some professional management...............

I'll stop - I'm allowing myself to think of all the things that should have happened or shouldn't, when really I just need to focus on the least stressful exit as possible. I really hope they just feel they have achieved what they want, as cheaply as possible and are therefore willing to drop the disciplinary and write a quick reference.

Can anyone tell me exactly what it would cost if they were able to dismiss me?
I thought that even with a gross misconduct charge ( which I cannot see happening!!!) they would still need to pay hours worked to date, last week's SSP and holiday accrued but not necessarily notice or much notice?

They will defo be led by how much cash this will cost them and I want to ensure that my resignation is cheaper or as cheap as any other option. My reckoning is that they should pay me hours worked since last pay date, accrued holiday which I now understand could be made to be taken as leave within notice ( which is fine) and SSP for the last week and possibly for the forthcoming fortnight should I be employed that long............. My notice period should be 4 weeks but as I am unlikely to work / cost them money (other than SSP claim) due to my health, then surely they will be flexible if they do agree to accept my resignation

I think me resigning is cheapest for them

You resigning is definitely the cheapest option for them in terms of costs and time unless they think they have grounds to dismiss you for gross misconduct but that doesn't sound the case from what you've said.

I suspect you're right and they want you gone as quickly as with as little cost/effort as possible so make it easy for them by cooperating.

Could you not tell them mostly what you have said on your OP?