Disciplinary/sickness/resignation query

[orangedog]

Hi,

 

I have been asked by a colleague to be their witness/note taker at Disciplinary meeting and am looking for a little advice to pass on as to how to approach the meeting.

 

The background is as follows;

 

My colleague has already the investigative meeting and was suspended because their actions potentially are gross mis-conduct and they had admitted to it.

 

Upon suspension, they went to their GP and have been diagnosed as suffering with depression for at least the last 4 years. They have submitted sick notes and have been on sick leave

for the last 6 weeks.

 

They have been to counselling sessions and prescribed anti-depressents and the current sick note expires on 30th June.

 

On 1st june my colleague sent in their written resignation with the required 30 days notice to end their employment on 30th June.

 

The company have "refuse to accept this", and have invited them in to a disciplinary meeting next week.

 

My questions are as follows;

 

As my colleague is currently receiving treatment for depression and has a current sick note, are they obliged to attend?

 

If they don't attend, can they be dismissed without attending the disciplinary?

 

Can an employer refuse to accept an employees resignation?

 

During the meeting can we ask for an adjournment as my colleague is not up to the stress of such a situation?

 

If the date to reconviene is after my colleagues apparent leave date i.e. 30th June. What is the obligation af the employer and my colleague?

 

Thanks in advance for any advice.

[Atlas01]

The employer should determine via a medical practitioner (theirs or yours) if your friend is mentally capable of attending a disciplinary hearing

 

if this is no they can on occasion hear it in their absence (most of the time the person is found fit by the employers medical advice)

 

they can refuse to allow a resignation due to a dismissal process but it's a paper exercise in some ways, the person cannot be forced to work any more but their record would show dismissed for x,y,z instead of resigned, it may also affect notice/entitlements pilon and such

[Sidewinder]

Completely agree. It would be reasonable for the employer to allow a postponement where an employee is unfit or unable to attend a disciplinary, but this cannot be postponed forever, and ultimately the hearing can be heard in the employee's absence.

 

As stated above, the employer is entitled to refuse a resignation and instead see out the disciplinary process.

[orangedog]

Thanks for your answers.

 

Their main concern is for future references should they secure alternative employment.

 

How much can an information can an employer share on a reference in respect as to why an employment was ended?

[postggj]

dont take this the wrong way please

 

does your work place have a union rep

do you feel qualified to sit in on a disciplinary hearing which may amount to dismissal

 

have you been given all the typed up notes to be used in the meeting from the fact finding interview

are you aware of your companies disciplinary procedure

[orangedog]

I just received a text message asking if I would sit in as a witness/note taker. As far as I know company policy only allows me attend in this role as I have sat in on prior meetings and been told that was my only role, although I could request an adjournment should I feel it necessary.

 

There is a minority union membership however they are not a member.

 

I've found out in the last hour or so, that my workmate has had some advice from ACAS, hence their agreement to attend the meeting.

 

I'm not sure they have been given copies of notes etc, I'll check, but going off how others have been dealt with in the past, the company is very strict in following guidelines.

[postggj]

please go on to the ACAS website and look at the ACAS code of practice

 

if at all poss speak to the local IR Rep and advise him/her on the situation

[orangedog]

Just downloaded and read the ACAS code of practice, thanks for that.

 

Don't want to sound stupid, but what is an IR Rep?

[Sidewinder]

 

Their main concern is for future references should they secure alternative employment.

 

How much can an information can an employer share on a reference in respect as to why an employment was ended?

 

Resigning in the face of a disciplinary is rarely a good option for precisely this reason. With a resignation, whilst the employer cannot say that an employee was guilty of an act of gross misconduct, they can quite reasonably state that the employee resigned whilst the subject of a disciplinary matter, which is usually equally as damaging. At least with the disciplinary there is always the chance of being able to mitigate whatever has caused the problem, and to get a lesser sanction than dismissal, or where there are grounds to do so, to negotiate a compromise agreement.

 

An employer can say anything, so long as it is factual, although mostly this will amount to single word answers to direct questions.

[stu007]

Hi

 

I Still have to agree with Squaddie on this do you feel competent enough to not only be a witness but also a note taker?

 

1. Has the person asking you to be a witness written and informed the disciplinary panel of his request that you are a witness/note taker?

2. Do you have all the evidence to be used at the Disciplinary Hearing and are you sure its all the evidence?

3. If you have the evidence do you know what futher documentation/policies/procedures to request from the company and how to do it?

4. Do you have a letter of authority stating you are acting on this persons behalf at the hearing?

 

I could go on but you do need to realise what you are taking on and the responsibilities with it.

[Emmzzi]

The poster is being asked to be a witness - not act as legal counsel. They don't need a law degree. It is up to the person undergoing the disciplinary to get a more qualified rep if they wish, but if they chose not to be a member of the union, their call.

 

I'd be more wary of irritating our mutual employer by overstepping the role of notetaker and witness by getting too involved. Which is NOT what you have been asked to do. The single most useful thing you can do is say "I think we need to take a short break, would that be ok?" when things get heavy. Other than that, you are not there to talk AT ALL.

 

Slavery and bondage no longer being legal in this country the employer cannot refuse notice given with the correct notice period. They can however for eternity give out a reference saying "resigned pending outcome of disciplinary", so for that reason, I would sit tight.

[becky2585]

This is legally probably a more complex situation than I think you were expecting, OP.

 

The first thing to ascertain is whether your friend wants to keep their job. They've already admitted to the offence, so the focus here has to be heavily on mitigation. This would include the work stress, and depression.

 

The headache they have is that your friend could now be disabled. This also means that proceeding with the disciplinary hearing without assessing your friend's fitness to attend could mean that any subsequent dismissal could be unfair. If your friend is genuinely not in a fit state to attend, the company need to be made aware of this and medical evidence should be sought. He could even mention the potential disability point to try to get an adjournment. So in response to two of your questions - your friend shouldn't be obliged to attend with medical evidence in place, but as SW has said, it can't be postponed indefinitely. If disability is an issue, more investigation is required. However, if they do hold it in his absence, they could potentially still dismiss him.

 

The employer is in a difficult position here, too. What grounds did they cite for refusing the resignation?

 

In terms of your role as a companion, I'll make it clear what a companion is permitted to do. Firstly, I would suggest the primary reason for you to attend is to take a good note of the meeting for your friend to later rely on for a potential future unfair dismissal claim. However, you do have other roles as a companion. You are permitted to address the disciplinary hearing (including putting the employee's case forward, summing up, and responding on your friends behalf to any view expressed at the hearing) and to confer with him during the hearing. There is no right to answer questions on his behalf, but I would suggest that if your friend is not in a fit mental state, you may be asked to have a more proactive role in addressing the hearing. In answer to another question, yes, you an request an adjournment and it would probably be unreasonable for the employer to refuse.

 

Finally, the resignation point. Contrary to previous advice, it's not open to an employer to refuse to accept a resignation (officially, anyway). They can however clearly inform any future prospective employers that he resigned whilst under investigation for gross misconduct, which would not be ideal. It's a common misconception that a resignation isn't "valid" until it's been accepted, but case law is clear on this point, in that once a resignation has validly been given, it is effective and can neither be "refused" by the recipient or "withdrawn" by the person giving it, without the other's agreement.

[postggj]

that is why i asked the op to speak to the local IR REP

 

the rep can take over on representing the collegue if he or she wished it with the collegues request,

be it the collegue is a union member or not, and then the collegue will get the full support of the union rep if the union is recognised within the business in the disciplinary meeting including speaking and mitigatating any loss