In some industries, employees who are facing a disciplinary hearing (not gross misconduct or severe policy breaches like theft or fraud, physical violence, and gross negligence) might decide to resign before the hearing takes place. This is often because resignation is better than the stigma of dismissal.
If an employee resigns with immediate effect, i.e. no notice period, then this effectively cancels the disciplinary process as they are no longer deemed an employee. If you have a notice period, your employer has the legal right to continue the disciplinary process and if gross misconduct if the result, this will override the resignation and your employment record will show a dismissal rather than a resignation.
But what happens if the employee in question is in a public facing role and in a highly regulated industry and awaiting a disciplinary hearing for misconduct? Would the disciplinary proceedings come to an end in this situation or not? A recent case highlights what would happen.
Robust disciplinary action
Chris Noble, the former chief constable of Staffordshire Police, was suspended for breaching standard of police professional behaviour. He resigned on the eve of a two-day disciplinary hearing. Because of the seriousness of the allegations, the hearing went ahead in his absence in order to ensure that the case was fully and independently investigated in order to uphold the public’s confidence in policing.
An independent panel found that Mr Noble had committed gross misconduct and would have been immediately dismissed from his post, if he had not already resigned. Mr Noble has also been included on the College of Policing’s barred list, which will prevent him being employed or appointed by a Police force, or other specified law enforcement body.
This case highlighted the critical need for a change to the way that senior police offices are selected and vetted. And following the verdict, National Police Chiefs’ Council (NPCC) Chair, Chief Constable Gavin Stephens, said, “We know that there is more for us to do and further for us to go to ensure that officers and staff, as well as members of the public, feel confident to report wrongdoing, regardless of rank. Ensuring robust disciplinary action is taken is crucial in sending a clear message that such behaviour will not be tolerated.”
HR’s role
In a highly regulated industries like teaching, healthcare or policing, HR need to be impartial, vigilant and proceed with disciplinary hearings in cases where serious allegations have been made, or there is a concern about any illegal behaviour. They must act reasonably, follow a fair process and keep clear and comprehensive records of any investigation, and the conclusion, should any questions arise at a later date. Where relevant, the issue must also be reported to local safeguarding authorities to ensure that due process is followed to keep others safe.
What happens afterwards
If an employee is found guilty at a disciplinary hearing but asks for a reference, an employer must ensure that they stick to factual and evidence-based information – often just the dates of employment will suffice and try if you can, not make any comments about the suitability of the candidate. Whilst you are able to disclose the fact that the individual resigned during an ongoing investigation you must ensure that any statements are accurate and supported by evidence to avoid liability for defamation or misrepresentation. And to quell workplace speculation and protect confidentiality throughout the process, a simple memo sent to all staff stressing that they should not speculate or talk about the case will suffice. HR cannot name the person, give the specific reason for dismissal or any details about the dismissal.
How can we help?
If you require advice, help or support when preparing for a disciplinary hearing or any disciplinary action, please get in touch today by emailing caroline.robertson@actifhr.co.uk