Can one resign before an investigation starts?

[teaboy2]

Re: Can one resign before an investigation starts?

I kinda agree with the last point you've made cos we are speculating on the basis that they "might" be an investigation and disciplinary meeting which has yet to commence.

Exactly, everything at the moment is mere speculation and we can only speculate as to what the content of the text was whether it was "incriminating" or not and speculate as to whether the employer has seen the text or is simply relying on hear say accusation included in a written or verbal complaint. If its hear say then i don't see the need for a disciplinary and a mere informal chat asking about any text being sent and the content of that text would suffice, along with advice on what to and not put in such text messages.

[charitynjw]

Re: Can one resign before an investigation starts?

For the employer to start a disciplinary, they must inform the employee of their right to be accompanied.
This has not happened.
Therefore dismissal under these circumstances may well be 'unfair'.

[teaboy2]

Re: Can one resign before an investigation starts?

Indeed it would be charity - Section 12 of the Employment Relations Act 1999 - http://www.xperthr.co.uk/article/104...dismissal.aspx

So no qualifying period for tribunal is required for automatic unfair dismissal!

[charitynjw]

Re: Can one resign before an investigation starts?

Indeed it would be charity - Section 12 of the Employment Relations Act 1999 - http://www.xperthr.co.uk/article/104...dismissal.aspx

So no qualifying period for tribunal is required for automatic unfair dismissal!

Not just a pretty face, eh!

(Whatdya mean, even?)

[orfoster]

Re: Can one resign before an investigation starts?

I would approach the employer and see if they will go for a compromise agreement, they're going to want to take action which is likely to be dismissal in my view.

Despite the points raised about making a decision before the investigation they could remedy this now by carrying out the "reasonable investigation" that they have to and would be one persons word against another in any event.

I would suggest putting forward a without prejudice offer of compromise agreement with notice pay paid, an agreed reference in order to save costs of a hearing and an appeal etc. I would though suggest that this may be unlikely because the risk to the employer is less because the OP has been employed less than 2 years. The benefit to the employer is resolving the issue and getting a confidentiality clause contained within.......

Or the alternative is that I would cooperate fully with the investigation and apologise the full way through and at every opportunity say that it won't happen again.

[orfoster]

Re: Can one resign before an investigation starts?

Oh and I forgot to say, by resigning it doesn't mean a subsequent disciplinary goes away, that's why I recommend exploring the above. The hearing can take place in your colleagues absence and he can be dismissed which would be obviously given in any reference request.

[teaboy2]

Re: Can one resign before an investigation starts?

Oh and I forgot to say, by resigning it doesn't mean a subsequent disciplinary goes away, that's why I recommend exploring the above. The hearing can take place in your colleagues absence and he can be dismissed which would be obviously given in any reference request.

Thats sort of true - I say sort off, because if they accept his/her resignation, then they have agreed to mutually terminate the contract and therefore can not proceed with disciplinary after the date of termination (last date worked in notice period, if not resigning with immediate effect)

in Cox v Sun Alliance Life Ltd [2001] IRLR 448 it was held that an employer will be negligent in providing a reference that alludes to an employee’s misconduct unless the employer had carried out an investigation and has reasonable grounds for believing that the misconduct had taken place. The Court of Appeal held that the following approach is appropriate:

• The employer had a genuine belief in the employee's guilt;
• It was reasonable for the employer to hold that belief;
• The belief was reached after the employer had carried out a reasonable investigation.

http://www.lawgazette.co.uk/news/employment-law-40 - you will find details of the cox case half way down the page.

As for remedying what was said about them deciding to already dismiss him/her by holding the investigation - Well the whole point is that after what was said (if it was true what the manger said), it would be a biased investigation anyway. So until we actually know what exactly was said in the text and if the employer has evidence off the text, other than the complainants hear say allegation, then the employer is in my opinion on very thin grounds if they intend to rely on hear say alone. Especially when it could be easily argued that the complainant only made the complaint and the allegation out of anger due to the fact he/she didn't get what they wanted, if the employer is only relying solely on hear say. So we already have a motive as to why the customer made said allegation.

So if employer has no evidence other than an hear say allegation made by a disgruntled customer that didn't get what they wanted and therefore appear to be a sore loser, then the employer is taking a big risk if they dismiss the employee - same if they give him/her any formal warnings in my opinion!

[Inca]

Re: Can one resign before an investigation starts?

As jonesjones (OP) has not commented for 5 days maybe we should wait to get furthur information before debating any more?