UK Employment Law
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Hello, my name is Ben and it is my pleasure to assist you with your question today.Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long you have worked there.
Hello sorry for the delay I was trying to respond earlier but had difficulties getting onto the site. How long is your notice period?
Good morning. If you have submitted your resignation, the employer cannot reject that and your employment would terminate once your contractual notice expires. So it is not necessary for the employer to formally accept that.
The issue is that even if you have resigned and serving your notice period, you continue to be an employee and are subject to all normal rules and procedures, including disciplinary action. In other words, just because you have resigned does not make you immune from facing a disciplinary and you can be disciplined at any time up to your termination of employment with this employer.
If you are off sick when a disciplinary hearing is scheduled then your employer would be expected to postpone it until a date when you are fit to attend. Only continuous or suspicious absences should result in a hearing being held in your absence. Saying that, if you are leaving and this is the only opportunity to hold the disciplinary the employer could potentially hold it in your absence, although they need to give you every opportunity to defend yourself, such as by holding the meeting by phone, asking for your written submissions in advance, etc.
If this does go ahead and ends up in dismissal, then unfortunately the official reason for your termination would be a dismissal rather than resignation. However, if that is the case and you believe the employer had acted unfairly you would be able to challenge this by appealing to them first and then claiming unfair dismissal in the employment tribunal.
No i would not say that this would be a suspicious absence, although the employer may consider it a coincidence that you have resigned and signed of sick for the remainder of the notice period, which gives them no opportunity to address the disciplinary issues in that window, whilst you are still employed by them. A further issue is that stress is one of the most common reasons to go off sick in order to try and avoid a disciplinary. At this stage there is nothing much more you can do apart from telling them that you are deemed to sick to attend a disciplinary and that it would not be possible for the scheduled hearing to go ahead. mention that if it goes ahead in your absence you will have some serious concerns about the fairness of the procedure and that it would be in the interest of both parties to simply allow you to leave once your notice period expires.
these are certainly factors that will assist you but there is no way of predicting what the employer will do and there is nothing stopping them from actually going ahead with the hearing and even dismissing you - your rights will then be to appeal and claim in the tribunal if necessary
yes the sooner you do the better, just mention it is in the interest of both parties to just allow you to leave and not drag this through the disciplinary process and yes mention that you will have to consider challenging any decision taken in your absence
I am just due in a meeting if you have further questions I will answer them as soon as I return, thank you
Hello again, do you need me to clarify anything further for you?
If you do not need any further advice I would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you
Hello,I will be happy to deal with these separate issues, could you please kindly rate the advice I provided you with for your original query.Whilst you may have provided your employer with evidence to challenge the allegations against you, that does not automatically make you innocent as the employer has not had the chance to hold a formal hearing to examine this in more detail and question you bout it. As such they can mention that you left pending disciplinary action because that is the truth.
Case law supports such a position, for example, in the case of Bartholomew v London Borough of Hackney the court decided that the employer was not in breach of its duty of care to the employee by providing a reference which contained details of disciplinary proceedings which were pending when the employee left. An employer is under a duty of care to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. Therefore, if the employer had not included details of the disciplinary proceedings it would have failed in its duty to the prospective employer to provide a reference that was not unfair or misleading.
Finally, an offer of resignation has no legal standing, you either had to officially resign or remain in employment - there is no 'in between' and the employer would not have been obliged in law to consider this offer if it was not an official resignation
they potentially can but it would depend on manager availability, etc. If you are happy for them to go ahead and hold it then you can ask them to do so. However, you cannot ask them to cease the proceedings just because of the evidence you have provided, if the employer still believes that there is a case to answer they can hold them live but they should still give you the right to challenge them
has this answered your follow up question?
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