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Original poster

Resign or be dismissed?

40 replies

WoefulWorkWoes · 17/03/2018 11:38

Hello, have NC for this : would v much appreciate info/opinion

My basic question: in a capability process, just about to get a warning, should I resign 1st, or see this as period to look for a new job while getting paid? I've tried to get employer to settle but they are resisting as of now

I have been with my employer 7 years, trouble free until approx 18 months ago

Last Spring I was put in a capability procedure (PIP), which went on for ages as I improved.... last minute I was told I have failed and now in middle of capability hearing..

I engaged a solicitor to try to settle on the grounds that process is a foregone conclusion (it is - comments made re company wanting diff skill set, what settlement I could get, LONG history of being told to get a new job etc...). To my/solicitors surprise, company has no interest in settling (at this point I have no warning, and it should take 4-6 moths to dismiss me)

I have confirmed company give 'date only' reference -- so this could only come out if I'm asked in application process/industry gossip

I expect a warning next week, which I plan to appeal and also plan to raise a grievance vs manager re process being applied incorrectly /foregone conclusion/humiliating me by talking about it in open office

My question is:

I think I am better staying and looking for a job while still in work (I've been looking but not as hard as I should since all this started , but new jobs are lower paid/far away/temp not perm)
any downside to that? Would a new employer typically find out about the warnings (its private sector, massive company, new jobs will be private sector too)
for a new company, is there any difference in getting a 1st/final warning/actual dismissal?
do private companies usually ask about warnings?

in practice, do people find out about these sorts of things 'on the grapevine ' - the dismissal, and the grievance?

Thanks for any thoughts - I realise it's a few different questions !
Just for context, company was fine but went 'toxic' about 1 yr ago as business is bad: several colleagues 'disappeared ' in recent months (settlements), others leaving before pushed.

Company is resisting settlement to save money (obviously), it's stressful but for me I think resigning before I have a new job feels too much of a risk : at this point I'm not looking for a 'perfect ' job either

OP posts:

flowery · 17/03/2018 12:32

”Company is resisting settlement to save money”

I’d say they are resisting settlement because they don’t think they’ll need to. By approaching them and trying to get them to settle you are sending the message that you want out and have no appetite for bringing any kind of claim, therefore they think it’s worth carrying on because you’re probably looking for another job and will resign shortly.

Companies pay out in a settlement mainly to avoid a legal claim and they obviously feel there’s very little risk of that here.

If you’re able to manage without working for a bit or are confident you’ll find something else then resigning is better than being dismissed for capability.

Do you know what your employer’s policy on giving references is?

Original poster

WoefulWorkWoes · 17/03/2018 12:48

Thank you Flowery - I did ask my solicitor if that would be an issue (signalling want out) so understand that: I really tried to keep my job but it hasn't worked

Agree I think they are expecting a resignation

Ref policy is to confirm dates only, no re-employ/not answer, don't answer personal queries

I'm having trouble finding a new job , so wondering if being paid to look (despite the warning) is my better option

My claim will be that it's foregone: long history of being told by manager/head of dept to find a new job : I'm not sure how much company would be worried about that though?

OP posts:

Original poster

WoefulWorkWoes · 17/03/2018 12:56

You have no appetite for bringing any kind of claim

Do you mean that they think I don't want to go to a tribunal?
I don't: solicitors fees are mounting

If I have to resign: should I do this:

before 1st warning, final warning, or just before dismissal?

Or should I carry on and let them dismiss me as it's not stated on references (using the time to look: it takes ages in my field, I've applied for a few jobs, if I resigned I would be doing short-term contracts)

OP posts:

retirednow · 17/03/2018 13:05

I'd just resign and go, why wait to be dismissed unless you are going to be compensated financially. It sounds a stressful place to work, if it's not likely to improve why stay there, you'll be leaving anyway. What sort of jobs are you looking for, can we help at all x

Original poster

WoefulWorkWoes · 17/03/2018 13:09

The reason for not wanting to resign is to be in a paid job while looking (specialised field/small industry, I have 15+ yrs experience so getting a new job is not quick unfortunately)

I'm also angry that they told me 1 week before that I'd passed the PIP (informally) then it's suddenly changed as 'business wants a different profile' : its v unfair

OP posts:

Original poster

WoefulWorkWoes · 17/03/2018 13:11

Also , if I resign I feel employers will query why (I get asked this at interviews- why are you here/why do you want to leave X company)

I was planning to say I had been made redundant if there was a settlement...

OP posts:

Bombardier25966 · 17/03/2018 13:12

You've jumped the gun in rather dramatic form, bringing in a solicitor even during a gross dismissal investigation would be unusual, let alone before any disciplinary. You've played your hand long long before you needed to.

Resigning before a first warning would be extreme. Take this as a sign to actively look elsewhere. I would not consider resignation until there is a possibility of dismissal, which at present there does not appear to be.

I'd be surprised if it takes them 4 - 6 months to dismiss you, if that is what they are intent on doing. Unless a contractual disciplinary policy allows for longer periods for improvement, I'd expect a second or final written warning a month after the first and a dismissal the following month. Unless of course they find another reason to discipline you, in which case it could be even quicker.

TuftedLadyGrotto · 17/03/2018 13:13

Would they definitely not mention any disciplinary/capability on reference? Even the date only industries I know would mention anything formal or dismissal.

Bombardier25966 · 17/03/2018 13:14

It's fine to say you left due to redundancy if you are absolutely sure the reference will not say otherwise, or the potential employer will not find out via contacts at the current firm.

Original poster

WoefulWorkWoes · 17/03/2018 13:14

Bombardier ... maybe you are right (tears)

Company said they thought I was being 'premature'
Their policy is 8-12 weeks from 1st to final warning, 8-12 weeks from final to dismissal

Is my solicitor being too aggressive?

OP posts:

retirednow · 17/03/2018 13:44

Your solicitor is only doing what you have asked them to do, they are very expensive, have you got a union instead or spoken to ACAS. Do your employers know you are looking for another job, you don't sound very happy there and they will know you are just looking elsewhere, do you have any annual leave due to you. What do you plan to do if you do receive a warning.

Original poster

WoefulWorkWoes · 17/03/2018 13:49

Retired -I agree on the expense, but no, I'm asking for advice vs instructing the solicitor

No union or ACAs

I think they expect I've been looking and keep telling me to
I now want to leave too

If I have a warning- carry on til I get another job, or resign just before dismissal I think?

OP posts:

flowery · 17/03/2018 13:55

”Do you mean that they think I don't want to go to a tribunal?”

Yes absolutely. If they think the chances of a claim are very small there’s no incentive for them to settle.

You say your claim would be that it’s “foregone”, but you’d have to demonstrate that they therefore didn’t give you reasonable opportunity to improve etc- that a decision to dismiss you was not reasonable.

LillyputLane · 17/03/2018 14:04

Presumable they initially said you weren't performing to the standards of the role you are in and that was the grounds for starting the process?

did they agree targets and milestones for you work to as part of the capability management process?
have you met and adhered to these?

retirednow · 17/03/2018 14:15

There will be a time gap between getting a first warning and dismissal, if you get a warning then have no intention of staying or improving and just sit around waiting to be dismissed you could become resentful and unmotivated and they will know you are just playing for time and going through the motions. If you have no interest in staying apart from a guaranteed wage for a few weeks why not just put all your efforts into finding something more fulfilling. All your money will get eaten up by on going legal costs which you won't get back if there's no compensation.

Original poster

WoefulWorkWoes · 17/03/2018 14:19

Thanks for the replies - they are so helpful. I know my situation there is doomed, I've spent a fortune on solicitors and seem to be in same place

Flowery & Liliput:

I'm going to say that support/coaching has been limited (it has)
targets v subjective, generally I met half, and improved on half (so they will be able to dismiss me) - they then made the objectives harder :(
they gave me a 3 Month extension to pip as I had improved a lot (I thought this meant I was safe and would keep my job but it seems not... that was a big shock)

Flowery : I've not had my capability hearing in full yet, but before this my boss was discussing who would replace me, severance etc : that is what I take to say it's a foregone conclusion so unfair : this is also my solicitors advice (specialist): do you think it's not any good

OP posts:

Original poster

WoefulWorkWoes · 17/03/2018 14:20

AND (sound the klaxons) solicitor has advised me to raise a grievance vs my manager about her comments to tell me to look for a new job etc ... to make a paper trail

Is there a risk to this?

OP posts:

Original poster

WoefulWorkWoes · 17/03/2018 14:22

I am planning to keep working hard/achieving : more for my own self worth (and so I have something to talk about at interviews!)

OP posts:

retirednow · 17/03/2018 15:01

Is there a paper trail, anything in writing from your manager telling you to get another job or was it during a mutual discussion about your performance, goals and future plans.have they offered you a severance payment, they will have a record of all your meetings, pip and warnings if you receive one. Has your solicitor seen the paperwork and do they think the manager has not acted fairly.

retirednow · 17/03/2018 15:10

Did something happen 18 months ago, i dont understand why everything changed, was there a job change, role change, everything was fine for fice and a hald then suddenly your on a pip. Sounds very stressful.

Original poster

WoefulWorkWoes · 17/03/2018 15:18

Retired now : a restructure and my face doesn't fit :(

No paper trail, it is all verbal

OP posts:

LillyputLane · 17/03/2018 15:34

targets v subjective, generally I met half, and improved on half (so they will be able to dismiss me) - they then made the objectives harder :(

They have to set clear measurable targets with deadlines and then at agreed intervals discuss with you how you are doing against the targets, this has to be recorded.

The onus is on them to show they have given you the opportunity to improve and made sure you've understood how to do this.

The process should be clearly set out in a company policy, ask for a copy of it and see if it matches what they've done so far.

If they don't have a policy and none of the above this is what they've done then I would have thought you'd have a case for a tribunal but you need to seek advice from a solicitor who specialises in employment law (take everything you have with you) and/or speak to ACAS.

By asking about resigning/settlement you've probably given them the impression that you don't want to go down the tribunal route so they're chancing their arm that you'll take the warning ok the chin or resign of your own accord.

Don't let them get away with this because it sounds like they haven't followed proper process to me......

LillyputLane · 17/03/2018 15:35

they then made the objectives harder

And they absolutely cannot change the goal posts!!

retirednow · 17/03/2018 16:31

If your face doesn't fit I reckon your scuppered from the start, this is only in my experience, i am not suggesting that's what happened to you. My face didn't fit and I put up with two years of feeling not quite comfortable in my job and mistrusting most people, it is horrible and I've seen it happen to other people.

Ollivander84 · 17/03/2018 16:40

Will you get notice pay if they dismiss you? I did, and I chose not to resign (partly because I wasn't sure if I would be dismissed or not)
I got 9 weeks notice pay, and a new job within a month despite the dismissal

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