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.

This is pretty pointless isn't it.

It seems there is nothing we can do but wait for them to do what they will.

It's grossly unfair.

I realise it is a different scenario but the principle is still the same. Maybe the employers in your situation also want the ability to be able to reveal what has (allegedly) happened to future employers?

In my fictional scenario, again it is possible that the employee is adamant they didn't harm the patient and what happened was due to lack of training. The employer believes that the evidence is strong enough to warrant disciplinary action and therefore wants to retain the ability to inform prospective employers.

I am not trying to make you feel worse but just showing it from the employers perspective.

In your scenario, the employer is ignoring the harassment and mismanagement.

How can it be acceptable to criticise someone's numbers when they have been off for a month? Let alone to do it publicly? It put so much pressure on him.

As for the frequent threats of gross misconduct, again surely I'm not the only one who would interpret that as wanting to get rid?

I will assume they will hold the disciplinary in his absence in the next three weeks, and dismiss him. Unfortunately, if OH say he is fit to attend and he doesn't, that is gross misconduct too.

We are really screwed.

I'm inclined to agree with Flowery in that they fear a constructive or unfair dismissal against them and are attempting to get their ducks in a row. However, whichever way they proceed, there is a chance of action against them. If they accept his resignation there is a potential claim for CD, if they dismiss him for any reason they potentially face a claim for UD. So why they don't accept his resignation is beyond me. BUT I'm not an expert.

I do however have first hand experience of bringing an UD case against an employer and can confirm that it is stressful indeed. Was lucky to have it settled before court but it was a slog. I understand the feeling of wanting vindication and a clean reference. We got neither despite "winning" an amount of money, which by the way, no longer includes an amount for "hurt feelings" ( for want of a better phrase ). I know he isn't asking for anything financial. I hope this can be resolved for him and that his health improves.

Sorry, meant "why they don't accept his resignation on the basis that that's the end of the matter" type thing

Thank you shakey, you have validated my initial thoughts.

Just wish they would do a compromise agreement, then we wouldn't have to bring any sort of claim.

It would hardly be more stressful than what we are doing.

His anxiety is getting so bad he can't leave the house, can't interact with anyone but me.

It's devastating to watch and I'm getting upset as I type this.

The best thing for his health is to not be in formal work right now. Why they won't let that happen is beyond me.

Must be awful for you both

As I said, I'm not an expert. The priority is his health. Put work to one side completely. He's resigned, we know they can't refuse that or force him to attend anything. If they discipline in his absence then so be it. You have the doctors, counsellors and OH confirming he's simply not well enough. He will be entitled to all documents relating to any disciplinary proceedings and outcomes. Keep those and all emails/letters they have sent. How long has he worked there by the way?

Either way, put everything to one side for now and focus on health and reducing stress for you both. X

Over 4 years.

OH insist he is well enough. This is the problem.

"If they accept his resignation there is a potential claim for CD, if they dismiss him for any reason they potentially face a claim for UD. So why they don't accept his resignation is beyond me."

Either dismissal is by no means a done deal, and they might not dismiss him at all, or they are confident in the process they are following and the reasonableness of a potential dismissal decision therefore would rather go down that route.

I'm sorry, you are clearly suffering a great deal of stress yourself. Unfortunately, I can see why they aren't backing down.

It really isn't straightforward to make an UD claim and the fact that the employee failed to read the email isn't going to help.

He had been scheduled to take part in a conference call about the email that he didn't read on the morning it was sent. Was it ever established whether he did in fact take part in that call?

I understand your desire to seek justice for him, but you're going to have to remember that whilst you could support him during a UD/CD claim it would be him who was questioned and going before an ET, not you.

Pushing a dismissal when he isn't fit to attend a disciplinary or defend himself seems wrong.

I think they won't dismiss him, he insists they will. I'm inclined to believe him as otherwise there is no reason to force him to stay.

I agree with Flowery, too, that it isn't inevitable that dismissal is planned.

Occupational health have not certified them as healthy enough either, despite pressure from the company.

I was going by this ^^ slithy?

Flowery Yes, I agree in essence. It just seems strange though that the company (by what slithy has recounted) do seem to have, whilst he has been off sick, put a lot of pressure and anxiety by stating GM a few times, for the "offence" and non attendance at OH? Then now they are not accepting resignation. It doesn't seem like they want to continue the employment. Unless, they are considering potential future claims and will give a lower outcome, verbal/written etc. But yes, I agree it could still legitimately be that. But they must know that by now, the employee would not stay anyway. Apologies for my to-ing and fro-ing, I know you are HR and my thoughts are rambling and I seem to be typing as I think! My brain works overtime on things like this due to my own unfortunate experience, which in one part, is still not resolved

The conference call attendance was not established. They have not investigated it.

They said it was up to them, they could choose to believe that it was a genuine error, that he continued to take the photos as he had always done, or they could choose to believe he ignored the new instructions on purpose to improve his numbers.

They are choosing to believe the latter, they said they don't need to prove it.

This is despite the fact that he didn't start behaving in a new way, he just continued the old way, despite the fact that no one said anything until it got to disciplinary level, and despite the fact that this was not part of his bonus calculation.

Seems like a done deal to me.

It's horrible, knowing that they have allowed others to resign, who have done far worse, but they are doing this to an ill person.

It's around £150 to start a constructive dismissal claim and £950 for a hearing, isn't it?

This isn't as straight forward as you'd like it to be. He did have the email, he was invited to a call. He failed to follow the new procedure. He is now not engaging with the investigation or disciplinary process, and occupational health do not support his claim that he is too ill to attend.

Have you had legal advice on whether you have a claim here?

It might seem wrong on an individual and moral level to pursue a disciplinary (not dismissal, that is an option but not a foregone conclusion). However, it's really common for people to go off sick when they are being investigated, it is stressful. It's also necessary to have a process that ensures everyone has the same procedures and outcomes. For something like this, it might also be necessary to demonstrate to other staff that they must read and apply new training asap.

It's not as clear cut as just letting him leave.

The reference could be difficult, too. They have to be honest, so if they are asked about his disciplinary record, I don't think this could be covered up. It may be possible to negotiate that it isn't included in an initial reference but the company don't get any benefit from this.

Sorry, OH haven't yet, but they keep trying to say that a meeting with the company will solve the health issues.

If they say that again, I feel the company will put on him to attend a meeting and cite it as another gross misconduct offence if he doesn't.

You are right Lougle, he probably couldn't take a claim for CD. At least not now. Hopefully there isn't a big time limit. If not, we will bring one when he is healthy enough. We don't care about the money.

Occupational health agree he is too ill. But they also say that the illness will be resolved by meeting with the company.

It's a bloody circular nightmare.

He went off sick when our daughter died and was forced back. This has essentially been a continuation of that, it's been building for 3 years.

Other people were also taking photos wrong. When he raised this in the invtestigatiom, the investigating manager said "we will speak to them about that and set them straight".

Yet he wasn't given this courtesy!

How can a new training be assumed to be accepted and understood without any follow up? He was off for a month after the training was sent out, literally within hours of it going out.

We have not had legal advice.

If it's him who has to fight this, there is no point, he just isn't capable. We will just have to wait for a dismissal.

Oh slithy I am so sorry

I wonder if they have had a complaint from a client about the photo?

They may be panicking about the client relationship, have assured them it was an error and the person responsible sacked. They are therefore keen to do this to the employee as they don't want it known by the client that he was able to resign when they have told them it was definitely his fault and he was dismissed as a result.

They may also have had a number of tribunal cases in the recent past and be anxious to avoid adverse publicity; my dh recently turned down an interview offer as the company had two recent UD cases which settled in their employee's favour.

I would also recommend using legal cover on your home insurance if you have it, when dh's boss dismissed him at Christmas so he could use his salary to go skiing (!) they got back some of the wages he was owed, and more importantly they took away all the hassle of dealing with the former employers, something I think would benefit you and the employee very much just now.

No, clients don't exist in that sense. They certainly wouldn't see internal photos.

I will look into legal cover.

Unfair dismissal requires a claim to be lodged within three months (less one day) of the date of dismissal.

For constructive dismissal, the breach of contract that you're claiming must be severe enough that you need to leave immediately (and therefore consider yourself 'dismissed').

Either way, it would need to be your DH that did it, not you, and he'd need to be able to do it soon. It sounds like the company is is following process quite carefully.