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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46784
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been given one months notice of termination of my

Customer Question

I have been given one months notice of termination of my employment. Could I resign now and avoid a dismissal?
Submitted: 8 months ago.
Category: Employment Law
Expert:  Ben Jones replied 8 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 8 months ago.

How long have you worked there for?

Customer: replied 8 months ago.
7 months
Customer: replied 8 months ago.
I was told that my 6 month probation period was to be extended by another 3 months but part way through this extension period (last Tuesday) I was called into a meeting and given one months notice of termination of my employment
Expert:  Ben Jones replied 8 months ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 8 months ago.

Many thanks for your patience. Whilst there is nothing stopping you from resigning at any point, you have to remember that by resigning you would be expected to give the employer the notice period required of you under contract. So if the notice period you must give them on resignation is the same or longer than the one they have given you, then by the time it runs its course, your employment would have terminated via dismissal.

If however the notice period you are due to give them is shorter and if given would end your employment before the end of the month’s notice issued by the employer, you can consider giving that in and your employment would then terminate by reason of resignation when your notice period ends.

This is your basic legal position. I have more detailed advice for you in terms of what could happen depending on your notice period length, 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

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46784
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 8 months ago.
I have to give four weeks notice. I have ten working days to appeal the decision, which I intend to do, the deadline is next Tuesday
Customer: replied 8 months ago.
I have to give four weeks notice. I have ten working days to appeal the decision which I intend to do the deadline is next Tuesday
Expert:  Ben Jones replied 8 months ago.

ok so if you have to give 4 weeks notice that is the same as what the employer has to give so you will not be able to terminate your employment earlier by resigning. Your only option is therefore to appeal the dismissal and hope that it is overturned on appeal

Customer: replied 8 months ago.
Would it be worth asking my employer to consider accepting my resignation with immediate effect rather than dismissing me?
Expert:  Ben Jones replied 8 months ago.

yes of course you have nothing to lose by doing that and they could accept it

Customer: replied 8 months ago.
Would it be better to appeal the dismissal first (I feel I have a good case but am not all that confident about a positive outcome) and then, if unsuccessful, approach them about the resignation, or to include the resignation request in my appeal letter?
Expert:  Ben Jones replied 8 months ago.

regardless of how good an appeal you have you are not protected against unfair dismissal so they can just leave the dismissal as it is. Bu you could appeal first and see what the outcome of that is before approaching them about the resignation

Customer: replied 8 months ago.
I also wondered about the reference my employer will provide in the future. Do I have any protection/redress if I feel that their reference is unfair? (i.e it is based on the criticisms made in their dismissal letter but does not take account of any of the responses to their points I made in my appeal)
Expert:  Ben Jones replied 8 months ago.

Whilst there is no legal obligation on employers to provide a reference for past employees, if they choose to do so they will automatically owe them a duty to take reasonable care in its preparation. This requires the employer to be accurate in the contents of the reference and ensure it is based on facts, rather than just personal opinion.

Certain principles have been established through case law over the years and the main points can be summarised as follows:

1. In the case of Bartholomew v London Borough of Hackney the employer provided a reference which contained details of disciplinary proceedings which were pending at the time the employee left. The court decided that the employer had not breached its duty of care by providing such a reference as it would have a duty to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. Therefore, if the employer had not included details of the disciplinary proceedings it would have failed in its duty to the prospective employer to provide a reference that was not unfair or misleading.

2. In the later case of Cox v Sun Alliance Life Ltd the employer provided a reference that contained details of an employee's alleged misconduct. However, they did not properly investigate these before providing the reference and the employee challenged the information in it. The court decided that an employer will be negligent in providing a reference that refers to an employee’s misconduct unless the employer had carried out an investigation and had reasonable grounds for believing that the misconduct had taken place. This can be applied to other matters forming part of a reference, not just issues of misconduct.

So if it is obvious that incorrect facts have been relied on, the contents are false or misleading, there may be a potential case for negligence against the employer and this matter could be taken further by seeking compensation in the county court for any damages caused.

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