Resign or be dismissed?

[WoefulWorkWoes]

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

Thank you

I think if I resign I will probably get payment in lieu (0r work part of notice, paid rest of it, its 3 mths notice)

Def payment in lieu if dismissed

If you can resign and possibly get 3 months pay without having to work then do it, that gives you time to find something else.

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

This. I'm thinking that trying to get a settlement before I get a warning on my record was a mistake (one that has cost me a LOT in legal fees)

Thank you Liliput and other posters ... you seem more switched on than my solicitor !

They have a policy and process: I'm sat at home writing up my concerns to send as a grievance on Monday

(Unless I decide it is stupid to escalate things) ... I am definitely leaving whether it's resign or be dismissed...

Grounds for 'constructive dismissal' IMO.

Be prepared for a difficult grievance process. They are very hard and often when the company 'investigates' all they are really looking for is a ground for you to be wrong.

For constructive dismissal you will need to show that you have used all possible procedures to resolve, ie grievance. It can be quite a high bar or prove constructive dismissal. There needs to be a breach of contract on the part of the employer, usually trust and confidence is the one cited.

You have to state constructive dismissal on your resignation.

Strawberry: if I raise a grievance will they be harder on me?

woeful I'm sorry you're going through the grinder on this, it's a horrible dehumanising process and often nowadays it is made worse by the fact (ironically) that employment law forces employers to take the employee down a conveyor belt and make them feel worthless, and useless at their job in order to be able to get rid of them.

You can legitimately exercise your right to raise a grievance if you believe their capability assessment was a foregone conclusion. You'll need to keep it factual and succinct as to why you believe the PIP was unjustified, enumerate your tangible improvements against their specific PIP targets and if they set you up to fail.

The bad news could be that they overturn your grievance - the company is effectively marking its own homework, and of course they'll always maintain they are following due process. They would paint you into a corner - it would be delaying the inevitable.

You may have to bite the bullet and resign but between now and then get your CV out there, if you haven't already. If you are on a long notice period, say 3 months, that could work in your favour.

They won't be harsh as such but as previous poster said, it's unlikely they will admit to finding they've done wrong by not following their own processes.

Write out your grievance clearly and in a chronological order. Include any evidence you have and keep it factual and as none emotive as possible.

Companies don't like grievances so you may find they try and make you feel guilty for raising one. It sounds like your solicitor acted very early by asking for settlement as normally they advice a formal grievance first if they think appropriate.

Are you thick skinned? If you are then raise a grievance but ensure to take someone to the meeting to you and keep your head high.

I'm a bit confused.
You said you are looking at a warning at the moment, not a dismissal.
Also, in the nicest possible way, if your employer has grounds to dismiss, why would they settle?

Oops! Sorry, missed the scond page. Back to re-read

Green: it's the kind of company that might choose to settle (less hassle, civilised) which is why my solicitor suggested that, but I think she jumped the gun
The idea was to leave before a warning went on my record - because it's a 'face doesn't fit' situation

Only you can decide what to do but personally I wouldn’t resign now with no job to go to if all you’re going to get this time is a warning. I’d be looking for another job ASAP.

As for references my last employer only put on your role and dates of employment. The only circumstances they would have said more is if someone was dismissed for gross misconduct.

Thanks BakedBeans - I agree

Keep going, and think about where I am at by final warning time/just before dismissal (hopefully further down the line if getting a new job)

It's so draining/exhausting that I have felt too ill to apply for jobs this weekend even though I know I have to