As a general rule, employees going through disciplinary processes which may lead to their dismissal are usually better to wait and see what the outcome is rather than preemptively resign.
The thinking behind this advice is that it is only possible to claim unfair dismissal if you have actually been dismissed. If you chose to jump ship before you are pushed you will be left with the less straightforward, and more difficult to win, claim of constructive dismissal. There are, as always, exceptions to this rule.
Resign or be sacked
Unscrupulous employers will often ask their employees to resign rather than be hauled through lengthy disciplinary procedures. Sometimes employers will go as far as attempting to induce their employees to resign by saying that they will sacked if they don’t resign.
Employees who have resigned following such threats will often be considered to have been dismissed by Employment Tribunals.
Telling an employee that they should resign because they will be sacked at the end of the process can also be useful evidence that the outcome has been decided before a proper investigation or hearing.
Penelope has worked in an all night garage for the last three years. The garage is unusually popular on Saturdays with people buying drinks and snacks late at night when other shops are closed. Penelope has told her employer that she thinks there is a big problem with shop lifting when the shop is very busy late at night. Her employer has failed to act on the information. The garage owner decides to do a stock take and discovers that a large amount of stock is missing. He accuses Penelope of stealing the stock. He tells her that he knows that she is guilty and that she will be sacked anyway so she should resign.
Resignation and Unemployment Benefits
Employees should check their position with regard to unemployment benefits such as Job Seeker’s Allowance or Employment Support Allowance as resigning without good cause can mean that benefits will be sanctioned and not paid immediately.
Demotion as a Disciplinary Sanction
Sometimes employers choose to demote their employees as a method of sanctioning what they see as inadequate performance or misconduct. Excessive demotion may well amount to a breach of contract which could lead to an employee resigning and issuing a claim to an Employment Tribunal.
Johnny is the manager of a team of sales staff. He is payed almost double what the members of his team are paid. The normally high performing team has had a very difficult quarter and results have not been as the directors of the business would have hoped. Johnny is put through a disciplinary process and told that he is going to be demoted to an ordinary sales adviser role because he is clearly not management material. Johnny may be able to resign and claim constructive dismissal because of the serious reduction in status and income which the sanction will bring about.
Further information on disciplinary procedures
Tom Street qualified as a solicitor in 2003 and has over 20 years experience in employment and litigation law. He studied law at the University of Manchester before undertaking the legal practice course at the College of Law in Guildford, going on to complete his legal training at a firm in Chancery Lane, London. Once fully qualified, he moved to a niche litigation practice in the City of London.
In 2010, Tom set up his own legal practice, Tom Street & Co Solicitors and as part of this, in accordance with his strongly held objective to provide everyone with an easy pathway to justice he established the online portals Do I Have A Case? and Tribunal Claim. These websites are trading names of Tom Street & Co Solicitors.