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How long has she worked there?
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Many thanks for your patience. First of all the fact that someone is under an investigation or on suspension does not prevent them from handing in their notice. They continue being employed as normal during that period and as they are not under notice of termination by the employer themselves, they are free to resign at any time. Of course they must generally serve their notice period, so if in that time the employer wants to continue with the disciplinary they can do and they can even dismiss for gross misconduct before the end of their notice period. The reason for termination would then be the dismissal rather than the resignation.
However, a fair procedure must be followed. The requirements of a misconduct dismissal are contained in the ACAS Code of Conduct. In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:
· Conducts a reasonable investigation;
· Follows a fair disciplinary procedure;
· Has reasonable grounds for believing the employee was guilty; and
· Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.
It is possible that a dismissal can take place based on witness evidence from a single person but that would not remove the requirement for an overall fair procedure being followed. So a full disciplinary process must still be applied and followed properly to ensure that the dismissal is fair and that the employer has a reasonable defence in the event an unfair dismissal claim is made.
In terms of payment during the suspension and investigation, the employee is entitled to their full pay for that period, unless there is a very clear and specific clause in their contract stating that periods of suspension are unpaid.
This is your basic legal position. I have more detailed advice for you in terms of the procedure that must be followed to fairly dismiss, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Thank you. It is nonsense that she does not need to attend any hearings or investigations because she has resigned. She is still an employee until her employment terminates and is bound as usual during her notice period. How you proceed is up to you – what you can do is let her resign and pay her the notice period she is due, then leave it at that. You can instead request that she works her notice period and in the meantime you proceed with the disciplinary matter and dismiss her. The issue with dismissing is that she can consider making an unfair dismissal claim if she thinks the dismissal was unfair or an unfair procedure was followed. It is then for you to prove that everything was done fairly and reasonably. Instead, if she resigns she can only make a constructive dismissal claim and in that case it is for her to prove that there were serious enough issues t justify her resigning and claiming – such claims are much more difficult to win by employees so in a way you just want to let her resign and not proceed with the disciplinary or dismissal because it will make things easier for you in the event she decides to take this further.