An employee has been suspended from his job, pending a disciplinary hearing. Should he resign to protect himself from receiving a poor reference or stick around and fight it out? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills and Reeve, offer legal advice.

The question:

I have been suspended from my job until the next disciplinary hearing, is it possible that I may resign now before the disciplinary hearing takes place, to save my job reference for this employment. I fear that I might be sacked for breach of procedure.

Rehan Arain

Legal advice:

Esther Smith, partner, Thomas Eggar

Any employee has the right to resign their position, subject to complying with the notice requirements in their contract, at any time. However if you resign during the course of disciplinary proceedings and / or without complying with your contractual obligations regarding notice, these are both matters of fact which an employer may properly refer to when providing a reference to a prospective employer.

If you believe that you are likely to be dismissed you may be better to resign now and seek alternative employment, and you may also wish to ask your current employer if they are prepared to agree a form of reference with you at this stage to use when job hunting. They may be prepared to do this if you resign as it avoids the hassle and risk involved on their part in continuing the disciplinary process and dismissing you.

However your employer is under no obligation to do this and could still confirm in a reference that you resigned your position whilst subject to disciplinary proceedings.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills and Reeve

Whether to resign rather than face a disciplinary hearing is an individual choice. You ask whether resigning will ‘save’ your reference. There are a couple of points to make about this. Firstly, in the vast majority of cases an employer is not obliged to give a reference. There are a couple of exceptions, the most likely to apply to you is that you have a contractual right to a reference. This may be written in your contract (although this is very rare) or it may have become a term implied through custom and practice.

However, you need to be aware that if an employer is going to provide a reference, that reference must be true, fair and honest. Importantly the reference should not be misleading. This means that even if you resign before the disciplinary hearing any reference could refer to the fact that you were the subject of an investigation and that there were pending disciplinary proceedings when you resigned. For balance the reference may go on to say that you denied any wrongdoing (if that’s the case).

If you are serious about resigning and are really concerned about a reference then you may want to consider raising this with your employer before the disciplinary hearing and ask perhaps to agree a reference as part of the agreed terms of you leaving. However, before you take this step you should seek detailed advice from a solicitor, law centre, CAB etc. who can advise you on the basis of a lot more information than is set out in your question.

Martin can be contacted at: martin.brewer@mills-reeve.com

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