Misconduct

Resignations and Disciplinary Allegations

adult anger angry angry faceI have written before about ‘heat of the moment’ resignations. The recent decision in Walker Smith v Perrys Motor Sales offers a good opportunity to look at this again, although I do not plan to look at the actual decision in Walker Smith in any great detail

The general position in the employment contract is that a resignation cannot be withdrawn or retracted, unless all parties agree to this. Although it seems counterintuitive the real question is whether there was a resignation at all? Does the fact an employee says to their employer “I Quit” or writes that a letter saying “I Resign” mean that that is really what happened? To address situations where an employee makes a rash statement that they quit but then rethink their position employment law has recognised that this may not, properly speaking, be an effective resignation. And, where this happens and the employer nonetheless considers them still refuses to consider them employed then this response by the employer amounts to a decision to dismiss. The status of such a ‘heat of the moment’ non-resignation ‘resignation’ is explored in Martin v Yeomen Aggregates Ltd:

I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgement, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.

In short, employment law has recognised a kind of legal fiction – where a person unambiguously says they resign but this is in the heat of the moment and is promptly retracted this may actually mean there was no resignation at all, even if this is made without notice.

This brings us to the case of Walker Smith. The important facts in the case are that the claimant was a longstanding employee who on 4 June attended a disciplinary investigation meeting  and, after this, was invited to a disciplinary hearing on 8 June. In response to this decision Mr Walker Smith wrote resigning his employment but also confirming that he would work his notice period of 3 months.   It appears that Mr Walker Smith thought that, by resigning, the employer would not hold the disciplinary meeting, but that was not to be. The hearing on the 8th was held and on the 13th of June Mr Walker Smith was dismissed, having had a proven case of gross misconduct made against him. He was summarily dismissed on that date (and so never got the chance to work his notice period).

I think the factual scenario is a good one to consider three issues:

  • Can a resignation be retracted?
  • Is resigning with notice a way to avoid disciplinary proceedings
  • What if the employee breaches the contract and resigns without notice.

Can a resignation be retracted?

As was the case for Mr Walker Smith when faced with a notice of an imminent possible dismissal, or some other unwelcome decision of an employer it is a common response for an employee to want to resign. It is certainly not unknown for an employee in a pique of anger at the employer’s decision to respond by resigning, only to regret that later.

As set out above, and in my earlier post, the basic position appears to be that if the resignation was not properly thought through and was made in haste then, if an employee then promptly retracts that decision then there is no resignation – and the contract of employment is either revived or the employee is dismissed (with the possibility of the employee claiming unfair dismissal).

However, the employee needs to act quickly. In Mr Walker Smith’s case it noted that even if the resignation was in the heat of the moment (the Appeal Tribunal was not convinced) the resignation was retracted a full 12 days later – in these circumstances the resignation must be treated as effective.

Is resigning with notice a way to avoid disciplinary proceedings?

One of the more interesting arguments I have had with a HR adviser for an employer arose out of just this situation. An employee resigned in response to a disciplinary proceeding against her (against my advice) and worked her notice but the employer could not complete the investigation before the end of the notice period when she left employment. Unbeknown to me or the employee the investigation continued and in due course some weeks later a letter was sent to the employee explaining she had to attend a disciplinary hearing where she may be dismissed. How, I asked (with as straight a face as I could muster,) did the employer think it could dismiss an employee who no longer worked for them and had fully complied with her contract. Remarkably, the HR adviser did not really see the problem and asserted a dismissal was still possible. In the event, a senior manager did what I often recommend they do, ignore the advice they receive and apply some common sense.

Mr Walker Smith evidently thought that resigning employment would avoid the disciplinary proceedings. In his case this was not successful. If an employee is working their notice then for that period they are subject to the contract of employment and the disciplinary proceeding can continue; if there is sufficient time in the notice period for the whole process to run its course then an employer can (if they have reasonable ground) dismiss for gross misconduct and this has the effect of overriding the resignation. However, if under the contract the notice period is short then a resignation may well have the effect of ensuring an employer is unable to complete a disciplinary process.

The benefit if this happens is that there is no formal proven finding of misconduct or sanction applied and so any subsequent employment reference should not make any reference to any proven misconduct, although an employer may legitimately explain that their employment ended while there was an unresolved disciplinary action being progressed against them.

As a general rule however, while a well timed resignation might help an employee avoid a disciplinary hearing it is not something I recommend. By doing so an employee avoids the opportunity to put their side of the case, appeal against any disciplinary decision and mean they were not dismissed and so have their opportunity to challenge any disciplinary proceedings severely curtailed, if not completely removed.

What if the employee breaches the contract and resigns without notice?

Where a notice period is worked any disciplinary proceeding an proceed during that period. If  an employee such wants to avoid the disciplinary hearing completely then they can resign immediately and not work notice. Sometimes if the disciplinary procedure is unfounded then a constructive dismissal claim may be made. More commonly however, they simply leave employment. If an employee does this then they will almost certainly have broken their contract of employment and the employer could (but unless large figures are involved probably won’t) sue the employee for breach of contract to recover the costs arising from the breach. I say almost as I recall one case in which by a quirk of contract a persons over a certain age could resign with no notice under contract and so the day before a misconduct hearing at which the employee would certainly be summarily dismissed the employee resigned and so avoided the dismissal (I am not sure this is healthy but I took some satisfaction from that, especially as the employee was also prosecuted for the same offence).

In practice, notwithstanding the erstwhile HR adviser’s delusions, a resignation without notice will mean an employee is recorded as resigned rather than dismissed and many employers, knowing that an unfair dismissal claim from such a situation is very unlikely, will be happy with this. An employer may however, still be minded to make reference to this in any references, especially if the alleged offence is one of dishonesty or they are employed in a regulated profession.

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