Reign before being sacked?

PurpleDaisy2114 · 2020-10-10T06:09:14+00:00

Morning. A family member is on a final written warning for breaching GDPR. She has since been involved in dispute with colleagues which was already being referred to HR. She has made a further error this week and has disciplinary meeting next week. I would say it is inevitable she will be dismissed. She can't face this and wishes to resign. She says that if she resigns she won't have to attend disciplinary meeting? I'm not sure about this. She doesn't have a job to go to, I've warned her it may impact her claim to benefits and I've just read online it could affect ability to get another job as employer could mention issues in her reference. Any advice?

Original poster

PurpleDaisy2114 · 10/10/2020 07:10

I forgot to mention she gets crippling anxiety and has been marginalised in the workplace.

OP posts:

Bmidreams · 10/10/2020 07:13

She could agree to resign if they will provide a reference. Maybe just stating position and dates. Always better to resign than be sacked. She won't have to go to disciplinary. Don't know about benefits.

KatherineJaneway · 10/10/2020 07:16

She'd have to resign with immediate effect. If she worked her notice period they could, and most likely would, carry on with the disciplinary procedure.

LajesticVantrashell · 10/10/2020 07:19

I've been in this situation and I resigned with agreement of a fact based reference. I then didn't need to attend the disciplinary. Not sure about benefits but it didn't affect my ability to get a job. In fact, I got a much much better one a week later.

whatnow41 · 10/10/2020 07:36

I'm pretty sure resigning makes her ineligible for some benefits for a short period, as she's 'deliberately' made herself unemployed. But resigning is still the right way to go, if they allow her to. Some companies won't, and will insist on completing the disciplinary process regardless. That's usually in a regulated industry where auditors would expect it to have been completed.

daisychain01 · 10/10/2020 08:29

If she has made repeated GDPR breaches I would encourage her to educate herself what the law states, what a breach involves and how she should comply. Otherwise she will have the same problem with any other future role which involves handling personal data.

Trixie18 · 10/10/2020 08:35

If she resigns she won't be able to claim benefits for 3 months. She should go to the disciplinary, you never know the outcome of these things. If she was fired it's very unlikely this would be put in a reference. These days most companies just do references with job title and length of service. If an ex employer writes something in a reference that loses an individual a job offer they can face being taken to court so most don't give any details in references, it's too risky. The company should have a referencing policy which states what they put in references.

LeanishMachine · 10/10/2020 08:40

They won't want to sack her, there's always an element if risk that someone will claim a procedure wasn't followed and even if the company is successful at tribunal, it's hassle they don't want. If she offers to resign, they'll be pleased and she may even be able to negotiate some sort of severance pay, certainly an agreed reference.

happinessischocolate · 10/10/2020 08:58

If you are sacked for misconduct then your benefits can be put on hold the same as if you resign for no good reason. Your friend is therefore better off resigning as she could argue there was a good reason for resigning.

Many employers now take references over the phone rather than by email or post, as you can get a more honest response verbally. Just don't use anyone from that company for references. I got my last job based on a reference from my boss from 20 years ago, because my other previous employer had sold the company and buggered off to Barbados

Funkypolar · 10/10/2020 17:38

I resigned from one civil service department because my manager was bullying me and tried to do a stage one disciplinary on me. I then put in a grievance against him and the disciplinary was dropped.

Any civil service references just state dates of service.

Went back to the same department in a new location a couple of years later. Got the job and passed vetting, nothing on my online HR record about any disciplinary!

PeaceAndHarmoneeee · 10/10/2020 17:44

@LeanishMachine

They won't want to sack her, there's always an element if risk that someone will claim a procedure wasn't followed and even if the company is successful at tribunal, it's hassle they don't want. If she offers to resign, they'll be pleased and she may even be able to negotiate some sort of severance pay, certainly an agreed reference.

I would actually say they are very likely to dismiss if the employee has a final written warning for breaching GDPR and has done the same thing again.

LeanishMachine · 10/10/2020 17:47

Oh I agree Peace, they will if they have to, but they'd prefer she went without being sacked, so there may be a negotiation to be had.

SeasonFinale · 10/10/2020 17:51

@LeanishMachine

They won't want to sack her, there's always an element if risk that someone will claim a procedure wasn't followed and even if the company is successful at tribunal, it's hassle they don't want. If she offers to resign, they'll be pleased and she may even be able to negotiate some sort of severance pay, certainly an agreed reference.

There is more risk that it would cost them far more in fines and damages for breach of GDPR. I'd like to see her argue she was unfairly dismissed when already on a final written warning and about to undergo another disciplinary!

LeanishMachine · 10/10/2020 17:54

Whether she deserved to be sacked often isn't the issue at tribunals though, it's usually about whether the process was followed properly. The will "let her go" but they will prefer not to sack her is all I'm saying.

cabbageking · 10/10/2020 17:58

It is up to work whether they wish to continue with the disciplinary in her absence or not.
The employer only needs to provide a truthful reference and can therefore can put what they like if it is true.

Original poster

PurpleDaisy2114 · 10/10/2020 20:01

Thank you all. I spoke to her today and she plans to resign the day before the disciplinary hearing. I mentioned about references as some of you have posted but she seems to want to do things her way.
I was all for encouraging her to fight until the second GDPR breach. I agree, I am pretty certain they will sack her if she doesn't resign.

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Whatdowehaveherethen · 11/10/2020 23:51

In regards to benefits, she WILL be able to claim straight away if she explains what happened. I know the 'rules' are different but there is a LOT of leeway.

flowery · 12/10/2020 11:25

@LeanishMachine

Whether she deserved to be sacked often isn't the issue at tribunals though, it's usually about whether the process was followed properly. The will "let her go" but they will prefer not to sack her is all I'm saying.

Yes and no. If a fair process wasn't followed (and the person has sufficient service to bring an unfair dismissal claim), then a tribunal would find it to be an unfair dismissal, however compensation is based on financial loss, and will be adjusted to reflect any extent to which the individual was at fault, and would have been dismissed anyway. If it's clear they have done something worthy of dismissal and would have been sacked anyway, compensation will be significantly reduced.

Original poster

PurpleDaisy2114 · 14/10/2020 07:04

Thank you all.
Well after supporting her with resignation letter she rang ACAS as I had previously suggested.
They advised her not to resign and wait for redundancy package which I am bemused by?!
She has requested that disciplinary meeting be held off due to her MH and raised a grievance.

OP posts:

flowery · 14/10/2020 07:06

What’s redundancy got to do with it- is she going through a redundancy process as well?

What’s the grievance about?

BonnieTellyLass · 14/10/2020 07:20

Hmm strange because redundancy has never been an option has it

You dont say how long they worked there or did i miss this?

Has she had in writing the possible outcomes of this meeting either via letter or a copy of the disciplinary procedure?

What is the basis of her grievance- is it the disagreement?

I once conducted a grievence for an individual who had 18months service and he was going through disciplinary proceedures.

I did the grievence heard his concerns and we paused the disciplinary investigations. I did grievence on a monday- outcome on Wednesday not upheld- disciplinary on Thursday and contract terminated the same day and the background was not following proceedures

Original poster

PurpleDaisy2114 · 15/10/2020 16:42

Family member is 63- so not sure if that is relevant.
Grievance is about inaccurate statements from other staff members regarding her conduct.

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Original poster

PurpleDaisy2114 · 15/10/2020 16:45

She has worked there for 30 years but it was recently taken over by a corporate. Previously a small business.

She has a copy of disciplinary policy. Yes she had a letter but she hasn't mentioned that possible outcomes were stated on it.

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AlwaysCheddar · 16/10/2020 05:55

Are they making redundancies?

TeachesOfPeaches · 16/10/2020 06:15

If she is 63 and worked there for 30 years then yes it would be pretty crazy for her to resign without looking at all options first.