It is fair to say that in the majority of cases, an employee doesn’t want to have their employment terminated. Similarly, despite what most people think, managers and leaders don’t get a kick out of firing an employee.
So, if you put both those situations together, you end up with a scenario where if an employee is being invited to a disciplinary hearing and it is quite clear that a possible outcome is dismissal, surely it makes sense to give the employee the opportunity to resign?
We see this with politicians – they choose to step down rather than be fired so how does this work in the workplace?
Despite what many people say, it is acceptable to engage in a conversation with an employee where they are given the opportunity to resign rather than be dismissed.
To be clear if the employee has stolen from the business, been fraudulent or embezzled cash – why would you want to give the employee the opportunity to resign because it is necessary to send out a clear message that certain conduct is unacceptable and will not be condoned. Furthermore, there are situations where a manager can show strong and decisive leadership by firing an employee but it will depend on the situation.
But if you are talking about a performance or capability related issue or the employee has acted in such a way that it is unacceptable or caused financial loss to the business, this will be less clear cut and there will be a risk attached to a termination.
Why might an employee want the option to resign?
In most cases an employee wants to avoid being dismissed because they will want to save face with their colleagues and they may want to avoid the stress of a disciplinary hearing – similarly, if they are dismissed, the Company is likely to have to tell a future employer in a reference and also, an employee does not want to have to tell a potential employer at interview that they were dismissed if asked at interview why they left their last job.
Also, most people regardless of their level want to avoid a dismissal on their CV.
How do you initiate a discussion?
If you have carried out an investigation and the employee is invited to a disciplinary hearing, the employer can initiate a discussion – often in the form of a protected conversation or sometimes without prejudice discussion – and give the employee the option to resign.
Similarly, during a disciplinary hearing adjournment, it may be possible to initiate a discussion and give the employee the option to resign because they may be about to be dismissed. If you pursue such a discussion during a disciplinary hearing adjournment and the employee is willing to resign, it makes sense to give them some time to reflect on the decision because the employer does not want to be accused of bullying the employee into resigning. Also, if the employee wants to resign, ensure that you get a letter of resignation.
Sometimes, the employee may be about to be dismissed for gross misconduct ie no notice so if you give them the option to resign, it has to be clear that if they want to resign, it is on the basis that the resignation will take immediate effect and there will be no notice payment.
Why would the employer want to give the employee this option?
If an employee is dismissed, there is always an element of risk to the business – either unfair dismissal or discrimination. There is nothing to stop the employee pursuing a claim and even if their claim appears to be without foundation, there is a cost defending a claim – not to mention the amount of management time involved.
Can an employee bring a constructive dismissal claim if they resign?
Potentially – yes.
But the business can manage the risk. If you accept an employee’s resignation as an alternative to a dismissal, it is important to note that you can mitigate the risk by
- Getting the resignation in writing
- Giving the opportunity for the employee to reflect on their options
- Depending on the circumstances, consider getting the employee to sign an ACAS COT3 in full and final settlement.
If the employee is contemplating a dismissal midway through a disciplinary hearing and has a Trade Union official with them, the likelihood is that the Union official will engage in a sensible conversation with the employee and explain their options.
Conclusion
To be clear, if an employer accepts an employee’s resignation rather than proceeding with a dismissal, there will be an element of risk. Assess the risk and the chances are that it is a lot less risky to accept the employee’s resignation than proceed with a dismissal which the employee will probably appeal and may then pursue a Tribunal claim.
From the employee’s point of view – it’s far easier to tell a prospective employer at interview that things weren’t working out and they decided to leave for personal reasons.
It can work for both employee and employer.
If you want advice regarding any of the issues raised, either call 07885 714771 or e-mail – adrian@abhrsolutions.co.uk
