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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was surprised to attend a "Fact Find" hearing to gain facts

Customer Question

I was surprised to attend a "Fact Find" hearing to gain facts about time off (one day mistakenly taken but not booked), and on my return I was off sick for a couple of days. I was duly suspended, and then signed off sick by my GP with severe stress and depression immediately due to various circumstances. The employer has received regular sick notes.
I offered my resignation on the 20th June, on the basis my reference would be clear as if they proposed any disciplinary action I wished it to be dropped on the basis I would leave.
I have today (27th June) received an email inviting me to a formal disciplinary hearing in July (just after I return if signed back - which is unlikely).
Can they do this?
I have offered resignation 1 week ago. This has not been responded to.
Serving to endeavour to discipline me will only damage my record and stop my new job (recently secured).
My GP and Counsellor detailed that the Bank was a major factor in my stress/depression.
Your advice is sought
Thank you
Submitted: 4 years ago.
Category: UK Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

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.

JACUSTOMER-u6tsuvt0- : I have worked there since March 2006.
JACUSTOMER-u6tsuvt0- : Sorry, that should be March 2007.
JACUSTOMER-u6tsuvt0- : When are you likely to respond please?
JACUSTOMER-u6tsuvt0- : When will I hear from you? My case and request is urgent as highlighted in my commentary
Ben Jones :

Hello sorry for the delay I was trying to respond earlier but had difficulties getting onto the site. How long is your notice period?

JACUSTOMER-u6tsuvt0- : 4 weeks, but I offered my resignation last Thursday (20th June) and at the time no official hearing had been set. I was unaware if they actually would....
JACUSTOMER-u6tsuvt0- : They have not yet accepted my resignation
JACUSTOMER-u6tsuvt0- : I am signed off sick until 8th July, and my GP has said this will be extended for a further period of 4 weeks (minimum)
JACUSTOMER-u6tsuvt0- : My leaving date (assuming 4 weeks from 20th June would be 18th July). I am concerned as they have detailed formal hearing should take place 10th July. I would appreciate your thoughts on this issue
JACUSTOMER-u6tsuvt0- : I am not off sick just due to issue at work, there has been personal issues (death of mother collapsing in my arms / brother defrauding me of £200k and leaving me £40k in debt / having to settle a court debt re my brother defrauding a 3rd party) amongst others....
JACUSTOMER-u6tsuvt0- : My stress has caused me severe health issues (heart problems / problems with my epilepsy / sleep depravation / emotionally wrecked / lacking in concentration) - all these factors the employer are aware of...
Ben Jones :

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.

JACUSTOMER-u6tsuvt0- : You mention "suspicious or continuous absences". I have been off sick since 26th March due to severe stress and depression, when my readings according to a Counsellor were "the worst they could be", and I was deemed a "serious risk" due to my feelings, and thoughts. This is all clearly documented. With the above, could this still be deemed "suspicious or continuous absences", with me seeing my doctor regularly, needing medication (two forms), and regular counselling to discuss issues. My sick notes have been continuous, and the last one used the wording "stress and depression - continues to be too unwell to attend medical. These would need to be arranged for after 8th July". My sick note expires 8th July. Yet, having spoken with my GP this morning, this will be extended for a further 4 weeks minimum, with continued close and regular assessment.
JACUSTOMER-u6tsuvt0- : The Bank have failed to respond to my resignation for a week. This I feel was to arrange the hearing, ensuring it could be undertaken for after 8th July, and before 18th July. This I feel is unfair treatment. I am deemed unwell, and too sick to attend appointments. What would be your thoughts re this and the above please? I need to approach them formally ASAP.
Ben Jones :

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.

JACUSTOMER-u6tsuvt0- : Thank you Ben, I appreciate what you say, but the Bank have fully documented issues from the past re my stress, eg my brothers fraud, an ex customer of my brothers sending an email to my old line manager blackmailing him that he would go to the press if I didn't settle my brothers debts, heart issues, being put to telephone counselling by my line manager (as he could see the stress issue), and an investigation by the Bank on me (purely because of the fraud issue with my brother). I was duly given a clean bill of health re the fraud (eg no involvement), but yet again this was detailed as adding huge stress issues onto my life. This was all prior to the issue they wish to discuss with me, and firmly documented by the Bank. Do you feel this helps my case? It I feel substantiates that I am not off with stress due to this issue alone.
Ben Jones :

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

JACUSTOMER-u6tsuvt0- : Should I raise all these points in a formal correspondence to my line manager today? And ask that they just let me go quietly? Should I also mention if they choose to take the hearing forward, I will dispute any outcome formally?
Ben Jones :

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

Ben Jones :

I am just due in a meeting if you have further questions I will answer them as soon as I return, thank you

Ben Jones :

Hello again, do you need me to clarify anything further for you?

Ben Jones :

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

JACUSTOMER-u6tsuvt0- : Hi Ben
JACUSTOMER-u6tsuvt0- : Hi Ben, I have sent through a GP's note for the date in question to my senior line manager, and he initially responded just acknowledging my resignation for the final date to be 18th July. However, the date in question as per the fact find has been explained, and proof sent through to my boss. He has returned today merely saying that "my reason for leaving will be resignation pending disciplinary meeting". I feel this to be unfair, especially as the allegation in their documentation to be firmly explained now, with my GP's note, and separately my GP confirmed visits to him for the 25th of the month before, the 1st and 12th of the month in question, with blood and stool samples taken. The date the Bank is concerned about is the 8th. How do you feel this may be challenged, as I do not wish any new reference to have commentary regarding a disciplinary, especially as its not being held, and I have proven my innocence in advance? Your detailed communication regarding this would be very much appreciated...Lee
JACUSTOMER-u6tsuvt0- : Separately Ben, I detailed my wish to resign on the 20th June, by email correspondence, confirming my wish to leave, although not formally offering my resignation. I confirmed I would be happy to if the bank dropped all issues against me, and didn't hear from them formally again until 26th June, asking me to attend a disciplinary hearing. I do feel they ignored my "offer" of resignation pending the opportunity to get this letter to me. Can you please offer me your advice on this issue? Thank you
Ben Jones :

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

JACUSTOMER-u6tsuvt0- : I appreciate this Ben, but as I am still employed on the 10th July (albeit signed off sick), the Bank could hold the hearing in my absence. It then has my evidence, which from a GP is clear. Is there a way I may challenge their commentary, as I have asked the hearing be ceased on the basis of my evidence, not of me leaving!
Ben Jones :

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

Ben Jones :

has this answered your follow up question?