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4 Dismissal

23 Apr, 2019 16:43

We have recently dismissed an employee on the grounds of capability - the formal process of capability procedure wasn't followed and after much discussion the line manager took the decision to dismiss the individual. ( The individual has been in employment for about 8 months)

The said individual appealed against her dismissal and on top of that then asked to make a formal grievance for bullying and harassment. While the individual was here there had been discussions and help to eliminate issues with her manager and the individual was offered the opportunity to make a formal grievance on at least 2 occasions which were declined.

The individual wanted the outcome of the appeal to allow her to resign rather than have dismissal as her reason for leaving. During the meeting we agreed that this wouldn't be a problem. ( We don't state the reason for leaving on any reference)

The individual has sent in a resignation, but with no grounds. Just please accept my resignation.

We haven't formally accepted it as we are still working through all that was discussed. We have started an investigation into the allegations.

My questions are

Do we put ourselves in a difficult position by accepting the resignation meaning if the allegations are upheld she could claim constructive dismissal even though she was dismissed and has less than 2 years service?

Do we have to inform the individual of the outcome of the investigation?

Many thanks for any advice you can give me

Sonia

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Teresa | 0 Posts

23 Apr, 2019 16:57

You don't have to accept a resignation for it to take effect - if someone resigns, it is a unilateral act and their contract ends at the end of their notice period 9i am assuming that you paid notice in lieu when the dismissal decision was made or are they working their notice?)

They only have a claim for unfair/constructive dismissal if there is the potential for discrimination on the grounds of a protected characteristic. if there is no potential for a discrimination claim, and they have been paid the correct amount of notice, it is unlikely they would be able to make a claim.

If there are issues with the manager, you are correct to investigate it, but if the person has left already, you don't have to notify them of the outcome (but you could choose to if you wished to).

Just as an aside - an employee doesn't have to make a 'formal' grievance, for the employer to be able to deal with it. if they notify the employer there is an issue, then it is a grievance, whether they make it 'formal' or not.

It sounds like they accept that their relationship with the company has come to an end and just want to make sure that future references don't show that they were dismissed,
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David | 0 Posts

23 Apr, 2019 20:24

In reply to Teresa:
Hi Sonia

Perhaps just stating the obvious, would just echo Teresa's wise words that, if this employee has already been formally dismissed by the employer, in the immortal words of Omar K., ' the moving hand having writ, moves on. Nor all thy piety or wit can lure it back to cancel half a line'

-in vernacular terms: wot's done's, done and unless they're still employed neither employee nor you the employer can normally / legitimately undo it.

(Oh, on reflection, maybe unless you allow employee to appeal the dismissal and then reinstate having allowed the appeal then the employee resigns - but very messy and why should you do all that?)
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Sonia Beaverstock | 0 Posts

26 Apr, 2019 08:31

In reply to Teresa:
Thank you Teresa. Your advice has been really helpful and very much appreciated.
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Sonia Beaverstock | 0 Posts

26 Apr, 2019 08:32

In reply to David:
Hi David
Thank you for your help - as always !!
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