Urgent help please

[slithytove]

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.

[slithytove]

There were many, many issues before this disciplinary issue, meaning that employee was already looking elsewhere, and had submitted complaints which are still unaddressed.

So there is no feeling robbed of the job. Leaving with positivity means for employee, no more harassment, and knowing they will get a clean reference. No wish for money.

They want to take some time at home with kids to recover mentally.

Had they offered to pay back bonus (which was achieved on kpi's not related to these photos) I think it would have been taken as an admission of guilt.

These photos both positively and negatively affected the employees results, yet the company are only focusing on the positive effect.

Employee did not ignore instructions. Employee was sent new photo guidelines on their last day in the business for I think a month. They did not read them, and no one checked that the guidelines were understood. They had been responsible for picture taking for years, but the error only began with the new guidelines. Before it was ok to do it that way. Employee just did it as they always had.

Company have come back today asking employee to make a formal complaint and saying they are still following their process. No mention of employees resignation or current sick status.

[slithytove]

Lougle - when you say it won't be resolved, they can't force the employee to stay, so surely all they can do is have the disciplinary in the employees absence?

[lougle]

"Had they offered to pay back bonus (which was achieved on kpi's not related to these photos) I think it would have been taken as an admission of guilt."

I disagree strongly. A statement such as "I'm so sorry, I overlooked the email informing of a change of policy and had no idea that my photos were incorrect. I can see why you think I have benefitted from this error. Please calculate the proportion of my bonus that has been awarded in error and I will pay it back..." would in no way indicate guilt and would be the right thing to do.

Yes all they can do is discipline in absence. But I doubt the employee would be able to move on with a clear conscience when their integrity is in doubt.

At the end of the day they are either fit for work or not. If they aren't fit, they aren't fit. But for the record, I'd imagine anyone would be stressed if a disciplinary loomed.

[slithytove]

They were stressed anyway due to a bereavement and no support being offered (complaint made and ignored) and being thrust in to a new role in the company with no training (complaint made and ignored) and being expected to unofficially cover another role (complaint made etc)

This was really the final straw. It feels like they've wanted employee out.

The bonus was not related to the kpi judged by these photos. So how could the employee have benefited?

I assure you, the employee has a clear conscience. Just doesn't understand why they aren't being allowed to leave. They nearly ended up in hospital with a breakdown at one point due to the incessant emails. The employee has been threatened twice since being off with a disciplinary for gross misconduct, for a) for not signing and sending back a new contract, and b) for not contacting occupational health.

At the time of a) the employee wasn't even getting out of bed. And b) they had not been told to contact occupational health. A referral was made without consent.

It is a witch hunt.

I just don't understand why they won't accept the resignation.

[slithytove]

They aren't fit, and they need to leave for their health. GP and counsellor have strongly urged this. 3 months of anti depressants haven't touched the sides of this issue.

[lougle]

Well the bottom line is that nobody can force someone to work somewhere they don't want to work.

[slithytove]

But it sounds like they will be dismissed in the interim?

I'm so lost on this. It isn't me, but very much affects me.

[lougle]

No, it sounds like the employer feels there is grounds for a disciplinary, outcome is undetermined.

[Fizrim]

Yes, what lougle said. I wouldn't presume the outcome of the disciplinary hearing, they've had four months to dismiss him and haven't done it so what makes you think they want to? And they have offered him a new contract in the meantime?

I have PM'd you as well.

[slithytove]

The new contract was a demotion.

Another huge source of upset while he was off sick.

[slithytove]

I just don't know why they would want to proceed with a disciplinary when someone has already resigned, if it wasn't to dismiss.

They must want to dismiss during the notice period.

[lougle]

All sorts of reasons:

-integrity: they felt it was reason for a disciplinary so need to follow through.
-proving that they can follow due process (especially if they are being accused of bad behaviour/relationship breakdown)
-because they want to find out how this all went so wrong, to learn from it in the future.
-because they believe the employee committed fraud and it's too serious to just drop.
-because they need to show consistent practice to other employees (e.g. 'when Tom did this he wasn't disciplined, he just resigned)
-because they don't want others to think that they can avoid disciplinary action by going off sick.

Just off the top of my head. Why should they be thwarted in following their processes because the employee won't engage?

Do you envisage employee to be too unwell to work for some time, or is it the case that they are fit to work, just not fit to work under these circumstances?

[slithytove]

Too unwell. For any employer under any conditions. This plus 2 bereavements in three years has just been too much.

Wrt to consistent practice - someone on the employees team was under investigation for real fraud, they had been claiming to visit accounts and instead staying at home, everything they did was totally falsified - they were allowed to resign. That was just over a year ago.

Please stop saying the employee WONT engage. They can't. Would you say the same if they were in a coma?

[lougle]

You have been asking if they can be forced to engage/return. If they can't then there is no question. We can only go on your posts.

It is quite common for people to go off sick when faced with disciplinary action. If this employee is incapable of returning, I don't know why you are asking?

I was giving hypothetical responses to your question: "I just don't know why they would want to proceed with a disciplinary when someone has already resigned, if it wasn't to dismiss."

[slithytove]

I'm asking because I don't know why the company are taking this response.

It feels like bullying. Other than saying initially they don't want him to resign they haven't acknowledged it. Nor have they acknowledged his sick note. He is left totally up in the air. It feels never ending.

I've said I know they can't force him to stay. But it feels like the next 3 weeks will be utter hell.

[flowery]

"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."

They are concerned the resignation is because the employee is planning a constructive dismissal claim and are putting their position that the relationship hasn't broken down in writing for the record.

If he/she wants to leave, just write saying thanks but no thanks and last day will be x.

[slithytove]

This is why we wanted an agreement - employee would not make a claim in return for instant resignation and a neutral reference.

If they persist, he will make a claim. He may be worse than useless right now due to his illness, but I'm not.

[lougle]

But what you (understandably) want is not going to benefit them in any way.

You want them to agree to giving a reference that they may deem untrue and, presumably, if they were asked the question 'do you have any reservations in recommending this candidate?' they would have to either lie or jeopardise their agreement with the employee.

Immediate resignation doesn't benefit them. He isn't there anyway and in any case he would be gone in 4 weeks if he resigns normally.

I can understand you pursuing a compromise agreement but if the company won't compromise it would cause you a lot to pursue a CD claim.

[lougle]

Sorry, I'm not clear. The only way it would be in the company's interests to give a CA is if they have advice that suggests the employee has a reasonable chance of success at Tribunal for a CD claim. It's an incredibly difficult thing to win.

[slithytove]

I will be making an attempt at either a constructive dismissal claim or an unfair dismissal claim if this keeps up.

We have had communications from them at minimum, once every three days, in 4 months off sick. He has never had a break, to recover from these people who caused this.

His performance has been criticised to the entire team, and he has been told he needs to improve his numbers, while off sick.

He was sent letters saying that his lack of contact to occupational health was gross misconduct. That this was a dismissal offence. Before he even knew he had been referred.

All the while his mental health was suffering, which they knew!

How on earth can he stay!!

I'm sorry I'm not angry at you lougle, and I get that CD claims are hard. But some do stand.

So from my perspective, letting him go with the knowledge he won't pursue a claim, would be a positive for them. At minimum it would be time and money saved.

A reference stating dates worked and departure due to resignation would be true. And is all he wants.

[lougle]

Have you formally requested a Compromise Agreement?

[TheClacksAreDown]

Your indignation over this is clear and understandable. But bear in mind there are now significant fees to pursue an ET case and even for people who are fully mentally well it is an extremely draining and stressful process and keeps the issues at the forefront for a significantly longer period.

Personally I'd follow flowery' advice and confirm he has resigned. Given he is off sick whether that is instant or following the requisite notice period ismt really a big deal bearing in mind they're not at work anyway.

[slithytove]

We have confirmed the resignation yes. 3 times. Now waiting on an appt with OH. The last one was cancelled due to another bereavement.

OH are very much working for the company. e.g. Employee told them he was self harming and having panic attacks, some which became asthma attacks, at the thought of dealing with the company, and they said the best way to get over that was to have a meeting with the company.

They will definitely say he is fit to attend a disciplinary regardless.

Haven't formally requested a CA, that would be the next step depending on their response.

[onlywhenyouleave]

The company may be not prepared to give a neutral reference.

For example, imagine an NHS employee had an allegation of harming a patient against them, resigned prior to any disciplinary hearing with an agreement of a neutral reference. Ex-employee then applies to work in another healthcare setting with direct access to patients - do you not think the ex-employer would need to be able to inform the prospective employer of the allegations?

[slithytove]

Yes but surely every situation is different? Why in your situation would they agree to a neutral reference.


He did not do what they are accusing.

They did fall down in their training requirements.

He does not have the mental strength to convey this in a disciplinary.