08/07/2019

Handling disciplinary proceedings is difficult enough for employers but if the employee then resigns part way through the proceedings, many employers are left feeling unsure what they should do.

If the employee resigns with immediate effect, their employment will terminate on that day. There is little point continuing a disciplinary procedure in respect of an employee who is no longer employed, as no disciplinary sanction can be imposed against a former employee.

However, the disciplinary information collated should be retained for a period of up to one year after the employee’s resignation because it may be needed as evidence should the employee subsequently try to claim constructive dismissal or unlawful discrimination in relation to the conduct of the disciplinary proceedings or anything else they may come up with.

If the employee resigns with notice, as a general rule, the disciplinary procedure should be progressed to its conclusion during the employee’s notice period.

The employee is still employed during this period and there is no reason why they should avoid a possible disciplinary sanction just because they have chosen to resign.

If the disciplinary procedure concludes during the notice period with a recommendation for the employee’s summary dismissal on the grounds of gross misconduct, this will supersede the resignation and the employee will be deemed to have been dismissed for conduct reasons.

If the disciplinary proceedings relate to a serious incident, such as a safeguarding issue or possible criminal offence, my advice would always be to complete the hearing and, if the chairperson believes the employee is guilty, contact should be made with the police or local authority. Even if the employee has resigned, you have a duty to ensure incidents of this gravity are properly reported and investigated.

Overall the decision on what to do next depends on the allegation and how far along the process is. If the issue is more about stupidity, then the company may just end the process drawing a line under it.

However, keep in mind your company’s policy for giving references. How you conclude the disciplinary may affect the decision on giving a reference or what it will contain. I often warn employees that they could find themselves subject to a reference which (fairly) states ‘resigned during a disciplinary procedure’.

If you need advice on any employment issue, get in touch by phoning 01782 205000 or email laura.franklin@beswicks.com