Many thanks for your patience, I am pleased to be able to continue assisting with your query now. First of all, I am sorry to hear about the issues you have experienced in your situation.
He is free to resign at any time and the employer cannot prevent that from happening. However, on resignation, he would be expected to honour his notice period, unless it is mutually agreed with the employer for him to be let go with immediate effect. If he has to work his notice period, the employer can still proceed with the disciplinary process during the notice period and in the event he is found guilty of gross misconduct, he may also be dismissed with immediate effect. That would make the official reason for termination dismissal, rather than resignation. I would, however hope that the fact he is leaving anyway will prompt the employer not to pursue a disciplinary any further and just let him leave.
If he cannot agree on a mutual early release, and it looks like the employer will be proceeding with the disciplinary even once he has resigned, then the following process will apply:
Alleged misconduct is a common reason for dismissing an employee and it is also one of the potentially fair reasons for dismissal under the Employment Rights Act 1996. It could be either due to a single serious act of misconduct or a series of less serious acts over a period of time.
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 genuine belief the employee was guilty; and
- Shows that dismissal was a decision that a reasonable employer would have taken in the circumstances
In addition, the employer is expected to follow the ACAS Code of Practice on Disciplinary and Grievance procedures, which can be incorporated into their own disciplinary policy. It sets out various steps along the process which the employer has to follow to ensure the process is fair.
1. Investigation – the employer must conduct a reasonable investigation first. This could include interviewing the employee or other witnesses who may have relevant information. What is reasonable depends entirely on the circumstances and the nature and seriousness of the allegations. The more serious or complex these are, the more detailed the investigation needs to be. Conversely, simple matters will only require a simple investigation which can be completed in a day. The employer is not legally required to provide full details of the allegations prior to an investigatory meeting taking place.
2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing to answer these allegations. They must be given reasonable notice of the hearing, together with details of the allegations and any evidence to be used against them. They have the legal right to be accompanied at the hearing by a trade union representative or a workplace colleague.
3. Decision - following the disciplinary hearing and once the employer has had a chance to consider the employee’s response, they can make a decision on the outcome. If the employer holds a genuine belief that the employee was guilty, then they can go ahead and formally penalise them.
4. Penalty – this has to be a decision, which a reasonable employer would have taken in the circumstances. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence, any mitigating factors and the employee's length of service and disciplinary record. Other aspects, like expressing remorse and apologising and there being evidence the issues were innocent or unintentional should also help to a degree.
In summary, the requirements of proof are not as stringent as in criminal law and an employer is not expected to prove beyond reasonable doubt that the alleged misconduct had definitely occurred. A decision on the balance of probabilities will be sufficient and a dismissal can be fair if the employer can show that it had met the above criteria, namely conducting a reasonable investigation, following a fair procedure and holding a genuine belief that the employee was guilty. Finally, it must show that dismissal was an outcome, which a reasonable employer would have taken in the circumstances.
If there is evidence that the employer has not followed a fair procedure as outlined above, the outcome can be formally appealed with the employer. After that, a claim for unfair dismissal can potentially be made in the Employment Tribunal. There are two main requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the official date of termination.
Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.