How to deal with a resignation during a disciplinary process

One of the issues identified in the Oxfam scandal earlier this year was that some of the perpetrators were allowed to resign instead of being dismissed when their behaviour came to light. This allowed them to obtain similar roles in other aid agencies, where no doubt they continued their unacceptable behaviour. Here at CHaRM we have always advised our clients against putting control of a dismissal or a disciplinary process in the employee's hands by accepting a resignation. There are lots of reasons for our approach. What has come out of the Oxfam scandal is that the individuals who sexually abused vulnerable people suffered no negative consequences for their behaviour. This has not been part of our argument for not accepting resignations before, but it may become so in the future.

Employers often think that accepting a resignation during a disciplinary or dismissal process is an easy option - it saves time if nothing else. The fall-out from the Oxfam scandal is evidence of why this is a bad move. Hopefully the fall-out from most businesses won't be anywhere near as severe as in this case, but even so, why put control of an employment process in someone else's hands?

So, how do you deal with a resignation in a disciplinary or dismissal process?

  1. Do not accept the resignation immediately. Consider the individual's length of service before you act. Have they been with you for less than two years? Do they have any of the 9 protected characteristics that will enable them to raise a claim against you? Identify your risk in accepting the resignation before you do so.
  2. If you do want to accept the resignation, make sure that you confirm acceptance in writing and make reference to the process that you were in, i.e. disciplinary or formal dismissal process. Explain that you believe they are resigning because of the fact that they are in a formal process. This approach may be more appropriate for people with less than two years service. Again, you need to identify your risk before responding in this way.
  3. If the employee has more than two years service they may be able to claim constructive unfair dismissal if you allow them to resign. In these situations we would recommend genuinely giving the employee the opportunity to rescind their resignation and re-commence the formal dismissal or disciplinary process. Many employers do not like this approach, but in our 22 years of business, employees have only reversed their decision a couple of times. In those situatioons we have continued the disciplinary process.

In reality, if someone is determined to resign you cannot stop them. It is how you respond to that resignation that is key. Snapping the employee's hand off before the ink is dry on their resignation letter is not always the best approach, no matter how tempting it is.

Any response will need to be well written to protect you properly and to make it fair and reasonable. Obviously the team at CHaRM can help you with an appropriate letter that properly manages your risk, should you find yourself in this situation.

We have always believed that it is really important for employers to retain control in any formal disciplinary or dismissal situation. The situation at Oxfam is an extreme example of why it is important and only reinforces our views.

Employee Relations - Managing your People
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