“Can an employer continue with disciplinary proceedings even after the employee has resigned with immediate effect?
Historically it has always been understood that it was an employer’s choice whether or not to pursue disciplinary proceedings. The remedy available to an employee for disciplinary proceedings that were wrongly or unfairly pursued lay after the event (i.e. dismissal) with claims for unfair and wrongful dismissal and, if appropriate, for discrimination.
However, the Supreme Court in Chhabra v West London Mental Health NHS Trust  IRLR 227) upheld the High Court decision to grant an injunction preventing the NHS Trust from pursuing gross misconduct proceedings and, indeed, preventing the pursuit of any disciplinary proceedings until a freshly-constituted investigation had been conducted. This was on the basis of the High Court’s assessment that Dr Chhabra’s conduct, even if proven, was not sufficiently serious to warrant summary dismissal, given various significant procedural breaches.
Save for a possible Court injunction there is nothing to prevent an employer from pursuing disciplinary proceedings event if an employee has decided to resign with immediate effect. Disciplinary proceedings are entirely under the control of the employer (save that an employee or former employee can decide whether or not to participate in them).
There is no financial difference, from an employer’s perspective, between an employee resigning with immediate effect and them being summarily dismissed for gross misconduct. In neither case would the employee be entitled to notice pay.
An employer would also need to consider that there is no legal basis on which an employer can compel a former employee, who has already resigned with immediate effect, to participate in disciplinary proceedings or to attend a disciplinary hearing. Indeed, it is highly unlikely that a former employee would do so. The avoidance of disciplinary proceedings may well be the reason for the resignation.
Finally, an employer cannot dismiss or terminate the employee who has already resigned with immediate effect.
Why would an employer want to pursue disciplinary proceedings against a former employee who has already resigned with immediate effect? Two possible reasons for this:-
- To potentially provide evidence on which to rely in the event that the former employee brings a claim against the employer (for example, for unfair dismissal or discrimination).
- In order that the employer can state more definitively that the employee would have been dismissed if they had not resigned.
However, it is hard to envisage the practical benefit of either. The employer can adduce evidence of the employee’s misconduct at the Court/Tribunal hearing in any event. The employer would also need to consider its duty to be fair, truthful and accurate when it comes to providing a reference for the former employee. Any conclusion reached in disciplinary proceedings that were not attended by the employee are unlikely to carry much weight when an employer is defending a negligent misstatement case based on a reference provided about the employee.
Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Legal Ltd) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.