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Resign before the sack?

 
Resign before the sack?

I've been suspended from work on full pay following a false accusation of theft. A colleague played a practical joke on me by hiding my credit card. I responded by hiding his wallet. CCTV in the office showed my "joke" but not my colleague's. He complained, the CCTV was checked and I was caught "red-handed". Despite protesting my innocence I'm facing dismissal for a stupid and ill-conceived prank.

The relationship I have with my employer isn't great and I've been thinking about leaving for a while. Although this isn't how I wanted it to happen, I can see this as an opportunity to leave a poor employer.

I've read elsewhere that I can resign before being dismissed. Depending on the notice I give, the employer is legally bound to either pay me up the date of resignation or for my month of notice or so I understand. The question is, can they reject my resignation and still sack me or if, I've handed in my notice does that prevent dismissal? Can they sack me after I've resigned?

I would prefer now to leave the company with some dignity even though I know for sure they'll maintain my guilt (the camera doesn't lie does it!). One last thing, some of the people in the office will undoubtedly make a scene if I return to collect my belongings. In the past I once sacked someone and arranged for them to collect their belongings at the weekend to avoid a scene. Am I within my rights to ask for this?

A final, final thing. One of my colleagues is very agressive and has threatened to call in the police re the "theft". Is there a legal position about this or would an employer not want the hassle of a police investigation?

davbryir

08/01/2009 12:14:27

There's a whole load of things going on here, so I'll try and deal with them one at a time.

As regards resigning, you can do this at any time, provided that you give the relevant notice as per your contract. However, what happens next is up for grabs, as it depends what the employer wants to do regarding the disciplinary matter.

For starters, the employer can continue with the disciplinary investigation, and if they conclude that it is gross misconduct they can still dismiss you before the end of your notice period. Your resignation gives you no immunity from this.

If the matter is not resolved before you leave then they can still truthfully put on any references asked for by future employers that you resigned while under disciplinary investigation. While they could not say that you were dismissed, or give details of what you were accused (unless your employment falls under the scope of legislation that allows this, for example within the financial services industry), it makes you look guilty.

A better option might be to discuss this with the employer first, asking them whether they would agree to drop the disciplinary issues if you resigned, but they are under no obligation to do this.

The employer can refuse to accept your resignation, but this is a slightly complicated concept. They cannot stop you leaving, but in disciplinary cases where they suspect that someone has only resigned because of the investigation they can refuse to "accept it", which means that if the disciplinary matter is concluded and you are not dismissed, and might want to withdraw your resignation, then you would still have the opportunity to do so. If your resignation is "accepted" then even if the disciplinary investigation concludes that you did nothing wrong the employer would not have to let you withdraw your resignation so you would leave regardless of what happens.

In terms of whether you leave immediately or serve your notice, this would be down to the you and the employer to agree to the arrangements. If you ask to go before the end of your notice period then they do not have to agree to this, and certainly would not then be bound to pay you for your notice period. Similarly, be very careful what you agree to that the employer suggests, and get written confirmation that on leaving employment before the end of your notice period (if they ask you to do so) you would get paid for the balance of your notice period. This really is for you to ask, and for the employer to agree, so we can't give you any guidance on what might happen here, if anything. Without any specific agreement to the contrary, you will need to serve your full notice period.

While you can ask to come back out of hours to collect your belongings, it's again for the employer to agree the arrangements.

As regards the police becoming involved, it's not just down to the company, but the colleague who was subject to the prank, or indeed anyone else who thinks they have witnessed a crime! The disciplinary investigation itself does not give you any protection against this, but equally it does not mean that someone being dismissed because of theft would automatically be reported to the police.

There are really two lines to pursue here. The first is to fight your case, and we're not really in a position to advice too much on that given that we don't know what went on or know what evidence is available. But if you can get the matter dropped, or retain your job at the end of it then you may be in a better long term position than simply resigning now.

The other would be to negotiate with your employer over the terms of your resignation so that the disciplinary matter is formally dropped. But it must be stressed that the employer is under no obligation to agree to any conditions for this.

monkey steve

08/01/2009 13:16:33

Many thanks!

Many thanks for the detailed reply. It's very good of you to provide this level of advice to a stranger and I really do appreciate it.

Knowing my employer as I do, and suspecting what the "evidence" shows without actually having seen it, I think my only line now is to negotiate as dignified an exit as I can. As I said in my original post, there is at least one person who will fight to make an example out of me and I can see clearly that the result of the disciplinary procedure will be dismissal.

Thanks again and I might post again soon if there are any developments.

davbryir

09/01/2009 14:55:52

Unfortunately, if it's as bleak as you make it sound, then things may well be stacked in favour of the employer, if that's the route they wish to take. For it to be a "fair" dismissal the test is not what proof the employer has that you did what you are accused of, but what they reasonably believe to have happened. So, apparent supporting CCTV footage with a one sided account from one or more of your colleagues and nothing solid to back up your version of events doesn't look good.

I wouldn't say it's defintely open and shut - it mostly depends on the employer viewing it as deliberate theft worth of gross misconduct and not a bit of horseplay that's gone further than it should, and we can't give you any indication of how the employer is going to view it.

So, a full and frank conversation with your manager or HR ahead of the formal disciplinary meetings might let you know where you stand, and see how an offer of resignation might be taken.

monkey steve

09/01/2009 15:35:42

A satisfactory-ish conclusion

Hi,

I had the full and frank discussion with my employer and the upshot is that I've resigned in exchange for a neutral reference and a halt to the disciplinary proceedings.

Thanks again for the advice. Time to sharpen my CV!

davbryir

12/01/2009 17:32:10

More developments

Unfortunately things have taken a turn for the worse. After turning up at work to collect my stuff. I was met by two police officers who promptly arrested me! I've been questioned, fingerprinted, photographed, drug tested and been told by the police that the CCTV evidence makes it look like I stole money. We're talking about £20 that's gone missing here. And I didn't do it.

The police have said that they may present a file to the CPS and after that it'll either be thrown out, I'll get a caution or a conviction. I'm terrifed that I'm going to end up being cautioned or convicted about something I haven't done. Would the CPS prosecute over £20 that's gone missing? The CCTV evidence loks pretty damning but all I did was play a stupid prank. I did not steal my colleague's cash!

davbryir

13/01/2009 16:02:03

I'm afraid that it is very likely now, given the evidence of your taking the wallet, that at the very least you will get a caution. Prosecutors often refuse to prosecute a case where a small amount of money is involved - but this is by no means certain, and I have known a case where someone was prosecuted for stealing £10. So it isn't out of the question I'm afraid. It often comes down to local policy and extraneous things like how busy the court system is. More worrying is the fact that this could only have happened with the complicity of your managers, since the police had to know when and where to find you, so I think you may have to kiss goodbye to any agreement on the reference. If an employer agrees to give a reference (which they don't have to do) it must be truthful, and I cannot see that the employer is not going to mention something of this, in case it comes back to haunt them in the form of a future employer suing for a misleading reference. Presumably the management have been aware for some time that there was an allegation of actual theft, rather than simply relocating the wallet. I'm not sure that there is very much we can say to reassure you, I'm afraid. It is now out of your hands, and all you can do is wait.

On the plus side, if there is only a caution, this is not a conviction and does not have to be declared, although it would certainly turn up on a CRB check. Small potatoes, perhaps, but better than nothing.

shikahra

13/01/2009 16:41:01

A long awaited update

This update is more for me to get this off my chest!

After being arrested I asked the police to look again at the CCTV so that they could see the original prank played by my (now former) colleague. They did, but it took them ten days to do it. Having now got a solicitor, we viewed the complete CCTV and, lo and behold, the story becomes clear. By this stage the police have offered me a caution and I'd refused it. My solicitor makes it clear she feels I should be released without charge. the senior of the two officers involved in my arrest refused and said the case would be forward to the CPS. This was on 23/1.

Fast forward now to May 11th. My solicitor calls to say I'm being charged. She can't understand it and neither can her boss. Even the arresting officer said he was surprised as did his sergeant. Over the next five months I appear in Magistrates three times and my solicitor advises me to go to Crown Court. I appear there twice before a trial date is set for October (9 months later!).

On the trial day my barrister, 20 mins before the trial is due to start, asks about something that I said in my statement about the CCTV footage. He says he hasn't seen that incident. Both me and my solicitor tell him what the CCTV footage should show. He then realises he has not had all the evidence and, more worryingly, neither have the CPS. The trial is postponed until the CPS retrieve the "missing" CCTV from the CCTV hard drive. Three weeks later I get a call to say the case is being dropped!!

It turns out the arresting officer forgot to pass the second lot of CCTV to the CPS. Ten months down the line my name is cleared but at great financial and personal loss to me and my family. I also found out that the CPS dismissed all the written and oral evidence my former employer supplied. The minutes from the meeting at which i was suspended were subjected to a further investigation as I was able to successfully prove some of it was false.

This has changed me, hopefully for the better!

davbryir

14/12/2009 20:36:43

God, what an awful year you have had. When you first posted I honestly didn't think that, even though the police had been called in, that things would go much beyond a severe talking to. I suppose the lesson here for everyone is that practical jokes of this kind are definitely not funny for anyone. Let's hope that 2010 holds some better fortunes for you. Good luck.

shikahra

14/12/2009 21:10:35