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]

He has tried to leave immediately. They won't allow it.
Won't even discuss returning company property.

They are following process now but that doesn't mean they couldn't do a compromise agreement if they really had concerns for his health.

[lougle]

"They won't allow it."

In what way? If someone wants to leave immediately, they write a letter saying that they consider that x,y,z has left them no choice but to leave immediately. They deliver the goods and get a signature for them. Who can stop them??

[slithytove]

They would class it as breach of contract.

[lougle]

Well that's part of what makes CD claims so difficult. In claiming that they've been dismissed, the employee leaves themselves open to a breach of contract claim. Then it's down to the ET to decide whether the contract had been breached by the employer, justifying the employee to leave without notice. It really is an 'all or nothing' situation.

[HermioneWeasley]

Slithy, given he's off sick, could they demo any financial loss as a result of the breach? If not, there's nothing they can sue for

[slithytove]

No, they couldn't actually.

So if he says its immediate, does that make it official? Meaning he can't be dismissed in the interim?

[flowery]

He'll say he believes the employer has fundamentally and irrevocably breached the contract by their actions, therefore he is no longer held by it and it is terminated with immediate effect.

They will say no we haven't breached it by our actions, it is still in place, and could well proceed and dismiss him anyway.

It would then be for a tribunal to decide whether the contract had already been fundamentally breached by the employer.

Claiming constructive dismissal is difficult. It is simpler if he can demonstrate that he has tried every available internal option to resolve the problems, which would usually involve a grievance.

[slithytove]

Never got to a grievance as they haven't responded to his complaints yet.

We don't want to antagonise. He has an appt with OH this week and will try and appeal to their medical side rather than corporate side. If we hear anything from the company I will suggest he makes a formal request for a compromise agreement.

I believe they will hold the disciplinary without him and dismiss him. This is going to be a nightmare.

[flowery]

If he requests a compromise agreement he's not in a strong position though. They need a reason to agree to that, and that reason has to be commercial, ie there is a likelihood of expensive legal action so a settlement will be cheaper/less hassle.

If they think they can dismiss him fairly and with minimal risk of ending up in a tribunal then there's no incentive for them to offer him a compromise. If he asks for it, he is sending the message that he has no intention of going through legal action.

If he wants a settlement, I would be inclined to let them go ahead, giving them maximum opportunity to make decisions he can paint as being unreasonable and using procedures he can say are unfair. Then he can complain/appeal, pointing out their legal vulnerabilities, making them more likely to see a settlement as being an appealing option.

If he asks for it now, they can say they had no intention of dismissing him.

[AnchorDownDeepBreath]

I think Flowery has said everything that needs to be said about asking for a compromise agreement at this stage. There is nothing in it for the company.

Is there anything that could be done to help him attend the disciplinary? A few weeks notice with no contact? Some counselling first?

I'm guessing not, but he'd be in a much stronger position if he could go.

If he can't face that at all, under any circumstances, it seems very unlikely that he'll be able to see the tribunal process through. I've seen just one case where the person couldn't attend meetings at work but did manage to attend the tribunal, and it was mentioned then.

I don't think dismissal is the foregone conclusion that he thinks it is. It's possible, but it always will be for disciplinaries of this magnitude. Do you think he's catastrophizing?

[slithytove]

He is prone to catastrophising yes. Everything is always the worst case scenario.

I don't think he could attend, no. If they gave him time with no contact, he would be out of his notice period and out of the company by then.

I feel he is days if not minutes away from a breakdown. Counselling and meds are keeping him afloat, but just.

I agree he probably couldn't cope with a tribunal. Can't they be done on someone's behalf e.g. By a solicitor?

[flowery]

Well you could certainly pay a solicitor to advise on the claim and draft paperwork/letters etc, and for a potentially complicated claim like this, I would advise it. A solicitor or barrister could also represent him in a tribunal so he doesn't have to do that himself, but there's no getting away from the fact that even with tons of legal advice, it's a stressful process.

[Fizrim]

Is there any way you could talk to a neutral third party about this, check all your insurances for any legal helplines or see a solicitor? I think you are a little too close to the situation to see it clearly.

If they do the disciplinary and decide to dismiss (which I am not convinced that they will) you can appeal. But I don't think he'd want to do that, and as a PP has said, if he is unable to attend the disciplinary meeting then he will find a tribunal more difficult. I know when I've seen tribunals, they have raised the fact that one of the people involved had been off sick for a long period of time, and signed fit for work on the day they were due to give evidence! Neither did the person return to work, they were signed off sick again after the tribunal.

I would also agree that he doesn't seem to be in a very strong position for a compromise agreement at the moment. Usually it is the company offering compromise agreements, I know it is difficult to wait and see what they do and his catastrophising is (completely understandably) rubbing off on you too - you've also had a stressful time of it.

[slithytove]

So OH rang and started the interview. When DH said he had resigned with the support of his GP, they said it wasn't appropriate to continue the call and ended it.

They then informed his company that he is fit for work.

No idea what happens now.

[Shakey15000]

Have you sought any legal advice slithy? It would seem fair that OH ended the call after he stated (again) that he had resigned. Just out of interest (and I'm NOT doubting you) how do you know they informed the company he was fit for work? Has he had communication from them (work)?

I've kept this thread on watch as I really feel for you both and the strain this must be

[AnchorDownDeepBreath]

Do you have a date for the disciplinary? Have you been advised if it will go ahead in his absence?

[lorelei9]

I am mystified by this

For the company to refuse to accept a resignation, they will usually have something financial or reputational to gain by refusing it

can you think of anything?

[slithytove]

They send the report through to DH and to his work.

How can they declare him fit for work?

Not heard anything from his company, no dates for disciplinary, no acceptance of resignation, and no mention of collecting company equipment or car.

I can only think they are refusing the resignation because they want to dismiss him, however there is no gain to them from this.

Not looked for legal advice.
GP has put me on sertraline to help me cope. It's just rotten.

[Shakey15000]

What did it say in the report?

Doesn't seem right no. If it was a short conversation along the lines of "Hi, it's OH calling for our telephone appointment" "I've resigned" "Ah right, no point in carrying on the convo then" then they can't possibly declare him fit for work. That, coupled with the advice from GP and counsellor.

Was it on his mobile? As in, that would state length of call etc? (just thinking of keeping "evidence" for future possible use.

So now you're in limbo How is your DH holding up? Poor you, indeed a worry for you. Have you got some other family/friends support for yourself?

[slithytove]

Literally that.

"Employee has informed me he has resigned.

I have assessed employee as fit for work."

It was on his mobile yes and I believe OH record calls. He hasn't the energy to challenge it so I'll be emailing them tonight.

No one in our lives know this is happening, so other than my counsellor I have no support no.

6 working days left before he is officially out of there. I just hope they can't keep him somehow.

[Shakey15000]

Well that's good then, in that by the (non) length of call it can be disputed that they couldn't have done a thorough assessment to conclude that he's "fit for work". I wouldn't rely on them having a copy of the call so would suggest noting the time, date, length etc. As an aside, if you've the energy bless you, I would go right back to the beginning and compose a timeline as far as you can remember, of all contact/discussion/letters since this started. It will help focus and will certainly help if you seek legal advice.

I think the ball is now firmly in their court to take the next step. As far as you and DH (and now OH) are concerned, he has resigned. It's up to them to either-

Accept and confirm the resignation and arrange collection of car etc

or


Reject the resignation and set date for disciplinary (remember for this, they have to issue fair notice and outline the reason for disciplinary action. He will be entitled to be accompanied by a colleague/union rep. ACAS website or via telephone call will advise on all of this)

Eitherway, the onus is on them to initiate the next step.

[slithytove]

How can they reject the resignation?

His one months notice is up in ten days. Then he won't be employed by them surely?

We do have a timeline I've been maintaining

[AnchorDownDeepBreath]

You urgently need legal advice. Especially if you are clinging on to only having ten days left and his resignation hasn't been accepted?

[slithytove]

But how can they not accept it? Gov.uk says they can't refuse to accept a resignation. DH has stated his notice period as per the contract and his last day, done it all in writing.

How can they legally say he is employed after that date?

[AnchorDownDeepBreath]

They can continue with the disciplinary.

Have they responded to the resignation at all?

You really need legal advice. This has been dragging on for a while and it doesn't look like it's just going to go away.