Resign before disciplinary meeting or wait for possible dismissal outcome?

[sunnysunshinesun]

Is it better to resign before a disciplinary meeting if a possible outcome is dismissal?

The person in question wants to leave the job regardless. They are just unsure if it’s better to resign (and claim constructive dismissal) or wait for the outcome of the disciplinary. If they are dimissed they would claim unlawful/wrongful dismissal. Obviously if they aren’t dismissed they would resign at that point.

They put in a grievance which wasn’t upheld. Their Union believes they have been very badly treated in terms of disability discrimination.

I was thinking it might just be better for them to resign now but they aren’t sure. The Union don’t support with claims of constructive dismissal so if she resigned she’d have to go it alone. Does anyone have experience with this?

A disciplinary process will still be on your record, even if you resign. I know someone this happened to, so it makes no difference if you are trying to avoid that.

Constructive dismissal is incredibly difficult to prove in a legal claim. Is “the union” just the local representative or the actual legal team at the union’s headquarters?

This is too complex a question without the full details.

Your friend would be best contacting ACAS and an employment solicitor.

As a general, I would say it’s harder to prove constructive dismissal than unfair or wrongful dismissal.

I am surprised the union won’t discuss constructive dismissal.

If the person can wait around trying to decide whether or not to resign then how is it constructive dismissal?

Constructive dismissal is when an employer has treated you so badly or breached your contract to such an extent that it is impossible for you to carry on working, they have forced you out.

What does the union advise ? Clearly forget the constructive dismissal.
Constructive dismissal is very hard to prove. I would seek advice on how to approach before just resigning . If you leave your job of your own choice any benefits can be stopped by quite a number of weeks.
Is there not a half way house instead of leaving, putting the disability discrimination issues on the table and trying to get them resolved ?

Will the disciplinary process be on the record even if it hasn’t started or concluded by the time the employee resigns? And when you say on the record do you mean it’s highlighted in a reference?

See what options she has through HR. if they can get a without prejudice settlement. That’s what happened to a colleague of mine when her grievance was not upheld. I had an underhand company try to get me to resign so they didn’t have to pay anything but I hung on until I got a redundancy payment. I think your friend should try and get what she can and then leave esp if been there over 2 years

I would talk to the union about negotiating an exit settlement. TBH I'm surprised the union aren't suggesting that.

The legal team

They aren’t currently at work they are suspended/on sick leave

Yeah, I appreciate it’s difficult to advise without all the facts. I had heard that constructive dismissal was harder to prove.

That doesn’t really make a difference.

And if the union won’t assist with constructive dismissal then can she afford the legal advice for the tribunal?

As others have said, best option is probably to talk to union about starting settlement discussions. She’d walk away with less than she might win at tribunal but without the wait, stress, and risk of losing.

Yes it can be and also it’s clear they’re only resigning to avoid being dismissed, not because the employer has breached their contract.

I’d speak to ACAS
my friend claimed constructive dismissal they made her redundant when she was pregnant - this was a cut a dry case but disability discrimination is a huge thing nowadays so if not ACAS an employment law specialist.

I think some legal terms are being mixed up here, and your friend needs legal advice.

constructive dismissal and disability discrimation are two very different things, and if you bring the first the master, or judge, will not let you present evidence on the second, it will only be permitted to present evidence on constructive dismissal. Many litigants in person bring the wrong case as they don’t understand the law and lose.

so no of course not resign, let it play out and engage and employment lawyer. Do not use chat gpt, most lawyers can see immediately when that’s the case, and most people do not understand the law well enough to know the right questions to ask it.

Listen to the union's legal team.

Listen to the union.

Also, if she would need to claim benefits because of unemployment, being dismissed rather than resigning will probably make it easier for claims.

Is she guilty of what she's being accused of? When I went through a disciplinary, the possible outcome was dismissal, but I was innocent, and as my union rep pointed out,it shouldn't have gone to disciplinary after the initial investigation. However, given it did get that far, I didn't know what the outcome would be, but if I had resigned in anticipation of it all going horribly wrong, I'd have been right up a penniless creek. As it was, my record was wiped clean, and I had a few more years there before redundancy. (Bastards never apologised to me, though.)

The misconduct was walking out of the building while they were on shift. They walked out because they were very upset/distressed because colleague made a disabled slur directly to them about them.

They made a formal grievance which wasn’t upheld, as no independent witnesses.

They know they shouldn’t have walked off while on shift - but this didn’t directly impact any clients.

Settlement discussions - the employer can just refuse to partake - there’s no guarantee of walking away with anything.

Has the person followed a formal process as per the company policy, and got evidence etc to lodge a constructive dismissal / tribunal claim - there are timelines around when the claim would need to made etc. ACAS can advise. (Sorry if this has already been covered and I’ve missed it!)

I’ve been there myself on behalf of someone else, and it can get very complex and time consuming.

If the person wants to leave anyway they should definitely be concentrating some effort on applying for other jobs.

Constructive dismissal is rarely upheld and that is probably why the union would not support them at that point. That said being disciplined for walking out is not disability discrimination

If the union feels that there are grounds for wrongful dismissal I would follow their advice and let the disciplinary take its course. The employee should document everything and email herself the evidence to create a paper trail.

Back in early 2000's an acquaintance of mine was wrongfully dismissed and there were disability discrimination issues. There had been problems with the role from the onset. The organisation had violated its own procedures and the employee had a solid paper trail. The union threatened tribunal proceedings and the employer settled out of court to avoid bad publicity. The employer also had to cover the legal fees and provide a neutral reference. He came out of it with a lump sum and used it to start a business.

Jponing a union is always a good idea.

How long has she worked for them?

They should follow the process if they wish to bring a claim

Are they suspended or on sick leave?