Ask a Law Question, Get an Answer ASAP!
Hi thanks for your question. My name is***** can assist with this.
How long have you worked there for please?
Okay, so if he has been there for 2 years, he has the right not to be unfairly dismissed.
But what you're asking is whether he can resign and walk away ...
and presumably, to then claim for unfair dimissal and/or wrongful dismissal.
Fraud is a serious allegation and the employer must have proper grounds to make that accusation against him.
If it does not have reasonable grounds, then yes, this may be a very serious breach of what is called the implied duty of mutual trust and respect, entitling him to resign and claim constructive unfair dismissal.
However, very few people are advised to do this, because it's always a hard claim to prove in an employment tribunal.
The better thing is often to go through the formal process and, if dismissed, challenge that at an employment tribunal.
This is an easier claim to make, because the burden of proof rests with the employer. If he resigned, he would have to provide his claim, with the burden of proof being on him.
The employer needs proper grounds to challenge him like this. If it has received some evidence that points to him, then to ask him to explain his position might be reasonable, but to suggest fraud is pretty serious.
No, if he has resigned, the burden of proof is on him - the employee.
That's what I was saying above, it's not usually the best thing to do - the better approach is usually to be dismissed.
Well, all things taken together, he may be able to justify resigning as he has.
It's often harder, but not impossible obviously.
He has only 3 months from when he resigned to make a claim to the Tribunal, be he should speak with ACAS asap, as he should do this before he seeks to start a tribunal claim if he intends to do that.
He may be able to reach an agreement with them, but the way usually to do that is as a compromise to an unfair dismissal claim.
He could reach agreement without, but it's all about negotiating positions really, but then it depends on the people involved as there is no right or wrong approach to this.
Has he resigned with notice, (i.e. is he still working with them) or has he said he doesn't want to be there anymore and just walked out?
Yes, well you're right, he could do that and go ill now if he is ill. if he's thinking he might be off for 3 months though, he's going to need a doctors note to be able to justify it.
Alternatively, he could ask for the time as garden leave as you say, but it looks odd doesn't it if he asks, they say no, then ge goes ill!
It's worth him speaking to a solicitor and getting some letters written perhaps for him, which should help him do a deal with them which gets him out of there quickly with the best possible pay-off.
You can't gag people really, so there is probably little he can do about what they're saying, but he might be able to agree a reference and perhaps a statement to the workforce about the reason for him leaving.
If he is depressed and ill, and cannot work, then he is unlikely to be fit to even engage in addressing their questions at all. Again, speak to the doctor about this.
But you don't have to prove innocence, the employer has to show that they have reasonable basis for believing he has done the things he is accused of.
No, he doesn't have to prove his innocence.
The employer has to prove his guilt.
In simple terms.
All they can do is dismiss him. But they will no do that if he is off ill and leaving soon anyway.
It would be stupid of them to do that.
Because they make the claim against them (if he did pursue it!) easier.
Thank you very much!
Good luck to you both.
Please remember to rate the service for me before leaving :)
Just come back and post a question marked for my attention.
I can ask customer services to email it to you once you've left the chat (as if I do it before, it will cut you off).