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Help required - suspended on Full Pay under investigation -outcome 80/90% will be dismissed

 
Help required - suspended on Full Pay under investigation -outcome 80/90% will be dismissed

Hi

I have read my other peoples issues and can relate them to some of my own. I am really looking for advice and recommendation for my next step.

My background is that I work in a financial sales enviroment, in direct to customer sales. I have been suspended with the reasons stated Falsification of Bank records and Gross misconduct. All sounds very bad.

The truth of the matter is that i had seen a customer, introduced by a manager, following their redundancy. I had advised that he use some of his reduncy pay, and invest for the future, using both he and his wife. I had not met the wife. He agreed and took away forms. I submitted this case as written business before receiving the forms or meeting the wife. The forms were subsequently never returned, and the investment never made.

3 months later my sales manager calls the guy, and discusses the meeting, investment etc, and the customer denies ever meeting me and investing. I am suspended on this basis, although this has probably happened, no return of forms, on more than one occasion and the investigation will no doubt find this. So I expect the worst.

So my dilema is, do I resign now,(not recommended in previous cases) or get sacked for gross misconduct, etc. If I resign are they likely to continue this investgation and the formal disciplinary. Surely resigned under investigation looks better than dismissed for ...?

I await your wisdom, and dnt expect you to make my decision for me, I just wanted another couple of pairs of eyes.

Kind regards

JoseDominguez

16/01/2009 11:00:34

There really isn't a neat answer we can give you for this. How likely is it that your employer might continue the disciplinary investigation if you resign? Don't know - it's just down to them. Would a reference showing "resigned while under disciplinary investigation" look better than "dismissed for gross misconduct" - don't know - we're not the ones interviewing you for a new job.

There is an added note of caution here because you work in the financial services industry. References are covered by specific legislation, so that former employers are bound to give more information than normal references would contain. Specifically, any disciplinary information whether formal action, "spent" offences, or even just allegations. This may mean that even if your employer drops the investigations when you resign, they will still have to disclose the nature of the allegations in any references.

So, if you wish to remain withing the financial services industry it may make very little practical difference if you resign or are dismissed when it comes to references. That said, "resignation" would look better on a CV than "dismissed".

I think you are going to have to sit down and make some decisions about what you want to do going forward, and perhaps discuss your options with your employer. If you move away from the financial services industry, and the employer agrees to drop the disciplinary investigation if you resign (not that they have to agree to this), then you may come out of it with limited damage beyond having to look for another job. But unless you clear yourself and keep your job, there may be consequences whatever route you take.

monkey steve

16/01/2009 13:57:23

Thanks for taking the time to respond

I appreciate your input, and agree with your resolution, seeing as the financial services industry is shedding jobs with increasing speed I dont think the sector has much as an option at this time.

I have the potential to be self employed and earning an income 2/4 weeks from leaving.

I think it is unlikely that the company will want to take the time and effort to see the disciplinary through to conclusion if I resign, end of the day they have the result that they want, an employee that they feel thay can no longer trust - off the books.

Only joined them late 2007, after 11 successful years with one of the other top banks. Another bad judgement call.

Any suggestions for how to structure the conversation with the company, as its something I have no experience in.

JoseDominguez

16/01/2009 14:18:04

I have never really understood the vagaries of the financial sector, but "resigned under investigation" in any sector can certainly be worse than "dismissed for gross misconduct" - it all depends on the circumstances. There is a big difference between screwing up some paperwork and murdering the MD - "resigned under investigation" could mean the latter! But if you want to negotiate a way out there isn't any method other than being blunt - you will resign and save them the time and trouble of the hearing, and if they are very kind, could you have a neutral reference. Although as Steve has pointed out, this latter aspect may not be possible. The only thing I would caution on is whether this may impact on your business plans, particularly if you are thinking of financial services. But I don't know enough about the sector to advise on that.

shikahra

16/01/2009 17:36:19

Resigned monday, received call today to say letter rec......being held to 4 weeks

Hi

I spoke to my line manager on Monday and tendered my resignation, and asked for immediate effect. I was told by him that he would get back to me on the day, but to put it in writing and send it by recorded elivery to his office address. I have had no contact from him, despite a daily message being left, until noon today. I received a letter dated Monday 19th saying that they were calling me in 28 1 09 for a disciplinary hearing, and my manager today said that I can not resign with immediate effect as of Monday and they want to hold me to the 4 weeks notice in my contract.

So the points I want to know before going up the ladder are

1)Is this correct? 2)Can the delay by my line manager be termed as a delaying tactic? 3)They have to accept the date. 19 Jan 2009, so can I string out the time before the hearing, my HR paperwork says I can re arrange the date once. 4) can I raise a greivence due to the lack of contact received?

If there are further tactics that can be employed to delay until resignation period has expired, can I be enlighted of them please.

JoseDominguez

23/01/2009 13:21:39

Yes, it is correct. Your employer can insist on your working your notice period, and they have, so you must. No you cannot claim your manager was employing a delaying tactic - I doubt your manager, in these circumstances anyway, had any authority to waive your notice period and would have needed to take advice. You can ask for a rearranged date - personally I wouldn't bother - they have obviously decided that they fully intend to complete the disciplinary process, so you may as well get it over with. No you can't raise a grievance - or well you can, but it would be pointless - what you are claiming is wholly unreasonable and it wouldn't wash - nor would it delay the disciplinary. You can go sick for the next four weeks - it isn't guaranteed that they will postpone the disciplinary process that long, but most employers would err on the side of not proceeding. But again - I wouldn't necessarily recommend this. You seem to think that if you get to the last day without being sacked you are free and clear with "resigned" on your record. As we have already pointed out, you will DEFINITELY not be! And reference may, and probably will, say that you resigned whilst suspended (assuming you are?) and pending a disciplinary meeting. As soon as a potential employer spots the difference between your "resigned" explanation and the reference, you can kiss goodbye to any chance of recovering ground with an explanation. So you can delay as long as you like - but you will not improve your position one bit, and may make it worse. Because then you will have both the disciplinary and a substantial sickness record to explain to a new employer (sickness also being something many references ask about).

Frankly, being sacked can't actually make things any worse right now. Lots of people get sacked - sometimes fairly and sometimes not. And they do get back from there. But it is quite certain that they usually do so by being honest (or mostly so) and upfront. A potential employer is more likely to listen to your side of the story and accept it if they hear about it from you first. In applications you don't have to say why you left (even if they ask, most employers would not throw away a good application because one box like this wasn't filled in) - so if you have the skills and experience, and can get to interview, at least you can explain face to face.

shikahra

23/01/2009 14:01:10

Unless I am mis-reading this, I think you missed a key element of your resignation: to do so in exchange for the disciplinary investigations being dropped and a neutral reference, so that "resigned while under disciplinary investigation" does not appear on your reference.

As you have found out, there is no right to resign with immediate effect, and you can only reduce your notice period if the employer agrees.

You have now put yourself in the awkward position where the investigation continues and you may still be sacked, and even if you are cleared you will still be leaving in four weeks time. Something of a no win situation.

All you can really do now is concentrate on the disciplinary case, and either prove that there is no case, or mitigate so that dismissal is not the option that the company go for.

monkey steve

23/01/2009 15:03:40

Resigned whilst under Investigation

Dear Sir

I had disputes with a big high street bank. The day I was signed off for stress due to victimisation they conveniently had an investigation pending. I filed my grievances with unsatisfactory results from the bank yet they acknowledged the SENIOR Manager lacked knowledge on part of several issues. I attended the investigation meeting whilst on sick - it was bunch of allegations assumptions, why did you cancel loan insurance, or why did you not finance the whole loan and gave a seperate small loan for 1000 (I did this because interest on loans is front loaded even though refinancing into one loan would got me more reward I done a smaller loan which was minimal reward because the big loan would cost customer more). Basically their investigation was baseless it was a one on one interview conducted poorly where the interviewer was more determined to defame my character-eventually I had enough and we ended meeting as she was trying to force words out of my mouth. I then resigned and final grievance verdict was provided - where again they twisted words so I rephrased them and returned the notes of meeting. However, at end of their grievance responce they said in the reference it would state me resigning and my dates of employment with them. It stated nothing about investigation etc... I was in impression that their evidence or accusation had no merit. Now I hve started a tribunal claim their solicitors state I was under investigation - however, a manager did try getting me back into employment rather than grievance and said it was water under the bridge which is my word against theirs. However, if the bank felt investigation was resulting to grievance were they not OBLIGED to state we would write that in your refernce to another financial services industry? I am sure they are obliged to disclose issues of disciplinary under financial act and should have stated so if a disciplinary was pending in anotherwards they NEVER informed me I had disciplinary pending all of a sudden matter before tribunal and they mention it, am I right there is such provision obliging them to disclose a disciplinary? if so do you know the provision under which they would been obliged?

fight4justice

16/03/2009 15:47:26

I have got to admit to being entirely confused by your account. If I am reading this correctly, you resigned before completing the grievance procedures? In which case I cannot see that a tribunal can accept jurisdiction over your claim, as to claim constructive unfair dismissal you must complete the internal grievance procedure, including appeals. But maybe I have read this incorrectly.

However, you were under investigation, and that much is obviously true. Whether or not a reference must include information about disciplinary action depends on the specific type of work that you do, But from what you have said I cannot see that they have done anything wrong here. What they have said is true. A grievance and a disciplinary or two entirely separate things, and what your reference might or might not have said as a result of your grievance does not necessarily bind them to not mention a potential disciplinary. As far as I can see, their solicitors have told the truth - you were under investigation, and you cannot in all honesty expect that they wouldn't mention this to a tribunal. When you go out to play with the big boys, they will use absolutely everything they have against you, as will you. You don't seriously think that you get to sling all the mud and they will just sit there and take it? They will do whatever is necessary to paint the picture that they want, as will you. That is the nature of tribunals, and you may as well get used to it, because there will be more to come.

shikahra

16/03/2009 16:12:26

Thank You

Sorry. I did complete the grievance and a grievance appeal. The investigation was present at the time I received the final grievance response. My question is, they have not mentioned anything about a disciplinary in the final grievance response. They have simply stated - I would receive a reference which will contain my time in employment and role. Therefore, my question is-can they upon a reference request mention the investigation and disciplinary was pending? which at the time up until now they did not ONCE mention to me that I was being considered for disciplinary action, should they not have told me at the time, that I am pending a disciplinary? This question is more related to my future position on references with them-can they disclose this information despite them not telling me until now during tribunal proceedings...

I know they will throw mud at me.

fight4justice

16/03/2009 23:32:44

Yes they can certainly mention it in references. The investigation may have been started when you handed in your notice, but it was nothing to do with the grievance procedure and therefore any outcome of that, or any promise made, is unenforcable. If the concluded the investigation and found that a disciplinary was warranted, then this stands as the deicsion, whether or not you resigned. You knew that an investigation was underway, and you cannot really have not realised that this outcome was possible, as it is always one of the possibilities - you should have negotiated the dropping of the the investigation for your resignation, but hindsight is always a wonderful thing. So in law it is a truthful statement (although the law is rather toothless in terms of what you can do if it weren't!) and could be included on a reference.

shikahra

17/03/2009 09:34:45

Thank You

Much appreciated for your time. Final question is-The investigation outcome was poor, I have the notes to prove that their accusations were baseless, therefore, I will argue to have investigation dropped during the tribunal. If this is not possible I am considering bringing a civil case in defamation; is this possible? and can you tell me where I can look into the costs and procedures for this?

fight4justice

17/03/2009 10:43:41

Thank You

Much appreciated for your time. Final question is-The investigation outcome was poor, I have the notes to prove that their accusations were baseless, therefore, I will argue to have investigation dropped during the tribunal. If this is not possible I am considering bringing a civil case in defamation; is this possible? and can you tell me where I can look into the costs and procedures for this?

fight4justice

17/03/2009 10:46:02

I am going to tell you what I told someone else here recently. You clearly do not have a clue how tribunals work and what they do. And either no legal advice or poor legal advice. I cannot tell from what you have said whether you have a case, or how strong it is. But it gets weaker if you don't know what you are doing, and you don't. Get some legal advice or any case you may have will very likely be damaged.

You cannot ask a tribunal to drop the investigation - it is not their investigation, they have no power to make such a decision, and no law that will say they have to. You cannot sue for defamation if the employer says that your were under investigation / pending a disciplinary procedure. Defamation is, in a very basic term, telling a lie. This IS NOT a lie - it is true. You were under investigation and pending a disciplinary. If you chose to resign rather than defend yourself, then that was your choice, and you cannot now simply say that the two things were unrelated, because nobody is going to believe that. If the allegations were groundless then your only option was to defend yourself, and if dismissed as a result, take a case of unfair dismissal (which would have been infinitely easier than the route of constructive dismissal which you have taken, and certainly what any competant legal adviser would have told you to do). You did not and you cannot now cry foul about it.

If, and it is by no means certain, you win either a tribunal or agree a settlement beforehand (which is not the same thing as winning - be very clear about that!) you need to ask for an agreed reference as part of the settlement. A tribunal may not accept this as part of their settlement, but any prior agreement will usually accept it - but it is now the only way of getting this matter of your reference resolved.

shikahra

17/03/2009 11:34:20

Reference

Thank You. I am very sorry I am taking short cuts and confusing you There are a lot more issues involved than the reference. Victimisation in many different forms and ways. This issue has come to light at tribunal. As you rightly said "you have to expect them to throw mud at you". During grievance procedure (the final grievance) they asked me what outcome I wanted. I said justice and if not then I would like to resign from the Bank. At this time I also asked for a reference to be negotiated baring in mind the investigation, upon this response they said "I can confirm your reference will have your role and dates present". I know the Law is a joke - its ideal for big companies to throw their weight and money around. I believe I am right so I will fight for justice with little hope to win as I am up against a very big law firm. I do not believe in giving up when I am right.

fight4justice

17/03/2009 11:49:56

I should perhaps point out that what you say they said is not actually the same thing as saying that they would not mention the invetsigation etc. It doesn't actually specifically say that that would be ALL they said in the reference.

shikahra

17/03/2009 12:16:58

are u allowed to name the bank?

or are names not allowed?

morgan79

06/04/2009 23:48:41