What if an employee resigns before a disciplinary hearing​?

Even though you may not want to, you can’t reject someone’s resignation if they have provided you with the appropriate amount of notice. Notice periods should be laid down in the staff member’s contract of employment or if there’s no provision in the contract, it should at least respect the statutory minimum of a week.

You should also ask the employee to confirm their resignation in writing, as this is an important legal confirmation of their decision. Make sure you keep the confirmation in your records.

Should we continue with the disciplinary procedure?

This decision depends on whether the employee is resigning with immediate effect or whether they’ve resigned with notice. It may also depend on the length of the notice period and the time and effort that can be saved:

• If an employee resigns providing notice, you should continue the process. They may have committed an act of gross misconduct that’s quite minor and only results in a warning, in which case there’ll be no repercussions.
• If the disciplinary process finds the employee has committed an act of gross misconduct, they can be summarily dismissed. This’ll supersede their resignation and the reason for the termination of the employment relationship will be deemed as dismissed for gross misconduct, rather than resignation.

If the employee resigns with immediate effect, you’re unlikely (in most circumstances) to need to continue the process. However, you should keep notes of the disciplinary procedure in case the employee then decides to lodge claims with an employment tribunal.

In certain circumstances, for example, when there’s a safeguarding issue, you may still need to reach a conclusion on the basis of the evidence you have and make it clear to the former employee that the process will still continue and give them the opportunity to respond.

What do we have to include in the employee’s reference?

​Employees who resign to avoid the consequences of disciplinary action are often looking for a positive reference.​ Some exceptions do apply but, in general, there’s no duty imposed on your business to provide a reference to a former or current employee. If you do provide a reference, you must ensure the information you supply is:

1. Fair
2. Truthful
3. Accurate
4. Not misleading

In the case of Barthomew v London Borough of Hackney, an employee took legal action against their employer for negligence after they gave a reference stating the individual was suspended for alleged gross misconduct. As a result of the reference, the job offer from a prospective new employer was withdrawn. The Court of Appeal ruled if the employer hadn’t mentioned the disciplinary proceedings that were pending against the employee when they resigned, they would have failed to provide a fair, truthful, and accurate reference.

It also made clear the reference doesn’t always have to be full and comprehensive, but it does need to be fair. In any case, it’s advisable to keep references as short and factual as possible.

Find help when an employee resigns during the disciplinary process

If you’re struggling with a sudden resignation, poor performance with staff, or want to establish vital business policies, get in touch today. We offer a free, no obligation opening consultant to discuss your specific needs.