Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise on accepting an employee’s resignation whilst in the process of disciplinary action.
The question:
During an investigation, we suspended an employee on full pay and then invited him to a disciplinary meeting. He has responded saying he is seeking legal advice and will not attend the meeting until he has received this, and that he also wishes to resign immediately. How can we safely accept his resignation? Should we also proceed with the hearing as we may wish to pass the matter to the police?
Legal advice:
Esther Smith, partner, Thomas Eggar
It is not uncommon for employees to resign to avoid facing disciplinary action, and this usually arises either because they know that they are guilty of whatever is alleged of them, or they choose to resign to avoid having a disciplinary or even dismissal on their record.
In this situation I think you can safely accept the employee’s resignation. It has not been made in the ‘heat of the moment’ or circumstances suggesting that the employee is not aware of the implications of his actions or that he has had time to properly consider his position.
If you are uncomfortable, for any reason, in accepting his resignation, then you could write to him giving him the opportunity of reconsidering before you accept it. However, from a pragmatic point of view, if the disciplinary issue you are seeking to address is likely to result in dismissal (obviously without prejudging the outcome of the disciplinary process) then you may be better off accepting the resignation rather than having to dismiss.
If the employee is not happy with the situation and chooses to bring a claim, having resigned he would have to pursue a constructive dismissal claim rather than an actual unfair dismissal claim, which is legally a harder claim for him to succeed in. Therefore, overall it may be in the best interests of the company to accept the resignation rather than give him the opportunity to retract it.
I do not see much risk on the company’s part in doing this, given that the resignation was not made in the heat of the moment, unless there is no substance to or evidence in the disciplinary issue he is due to answer. If there is no substance to the allegation against him he may well have a sound claim for constructive dismissal, so giving him the opportunity to retract the resignation may avoid this claim if he takes the opportunity and you then subsequently drop the disciplinary. However, I would be surprised if there were no substance whatsoever to the disciplinary issues or you would not have suspended and investigated.
Even if you do accept the resignation it is entirely up to you whether or not your continue with the disciplinary in his absence and / or pass matters to the police. If you have evidence to give you a reasonable belief that he has committed a criminal act then I think you have an obligation to report this to the police, and it is then for them to decide whether or not to pursue it. You do not have to have completed the disciplinary process to report the matter, so long as you have some corroborating evidence.
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 & Reeve
A resignation is a unilateral act. It is effective when you receive it and there’s no issue about the employer ‘accepting’ it. In other words, an employee can resign if they wish and there’s really nothing you can do about it.
I note you say that the employee ‘wishes’ to resign, not that he has in fact resigned, but that may just be how you have expressed it. If the resignation hasn’t yet occurred then clearly the individual remains your employee. If the resignation is given but without notice then the employee will in fact be in breach of contract (unless he alleges constructive dismissal).
On the general point about the disciplinary hearing, it’s not open for an employee to refuse to attend in order to seek legal advice and you should move ahead according to your timetable. If the employee fails to attend (or even if he has resigned) you can proceed in his absence but obviously you may not have his side of the story so you should bear that in mind when deciding on what action to take. There are other options open to you, such as asking the employee to send in written representations if he is not attending and/or to send someone along to speak on his behalf.
Martin Brewer is a partner at Mills & Reeve. Martin can be contacted at: martin.brewer@mills-reeve.com
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