Dismissal or Resignation

happyhero

Hi, don't know if this is the right place for this but I cannot seem to find a better place so I hope it is ok.

My friend, no really my friend not me, recently did something at work which he truly regrets but knows it was bad enough for them to want to dismiss him. He asked me not to put the details on here. He was confident that they were not being unfair and that he had to go, but at the last minute he was offered the chance to resign instead, which he jumped at because it seems a much better way. The day came and he resigned. But he has been suspicious of the way it went and thinks there may be more to it.

basically he has no PC and asked me to put this on here for him. What he would like to know now is:

1. was there something he missed going on, that may be obvious to someone on here, ie benefits one way or the other between dismissal and resignation to either him or the company

2. are there any state entitlements that he would have gained or lost by resigning instead of be dismissed

3. are there any effects other than the obvious dismissal looks bad to the next employer when he is job seeking.

4. is there anything he has not thought to consider

Any help would be appreciated as he is a good friend and not a very happy man at the moment, and wants to be sure he took the best possible route under the circumstances.

dwsjarcmcd

happyhero
It sounds to me that your friends employer was being pretty fair to him, but to give an opinion (note - not answers, these will still need to be checked!)
1. No, I think it is better for him to resign, but he needs to check with his former employer as to what any reference will say. Employers have a legal duty with references to be truthfull, so if he was under disciplinary the reference needs to say that. If it was gross misconduct and never really completed the disciplinary process, the reference may be vaugue. Vital he speaks to the former employer to find out.
2. There used to be but not sure today, contact citizens advice.
3. See answer 1, if dismssal is on the reference, then he should be honest with prospective employers.
4. See answer 1 again. The reference will be vital for his propects and what he tells future employers

CIS

AFAIK In most cases JSA can be witheld for up to 13 weeks where a person has resigned from the previous job.

He may be okay with the reference as a lot of employers will only confirm that he worked for them and the dates, these days.Its to do with people taking legal action when they dont like the reference given.

happyhero

Cheers guys so do you think the employer had something to gain? It seems funny that they were going for dismissal all the way and suddely were happy to offer resignation. Were they just being kind or had they realised something, whereby a resignation would suit them better?

Bogof_Babe

Perhaps they were worried about being taken to a tribunal for unfair dismissal.

skylight

"If" he wanted to sue them for unfair/construcive dismisaal etc, he could if they fired him. (Not making point of whos right/wrong or win/lose here)

If he resigns, he has no leg to stand on and therefore protects the company from a possible retaliation.


Edit: Just noticed SNAP!!!

dwsjarcmcd

I suspect that your friend had been with his employers for a few years and had a good track record before, and were either being compasionate or, more likely they did not want to go through the procedures surrounding dismissal (disciplinary meetings, appeals) that must be gone through.
I don't think the last 2 posts are right (sorry!). For example, constructive dismissal, by definition always happens after the employee resigns. Similarly, new legislation allows for any employee to instigate a grievance against their former employee for 3 months after they are fired/dismissed. After going through that procedure they could take proceedings whether they were dismissed or fired.

ManAtHome

dwsjarcmcd is correct - a friend of mine has an ongoing constructive dismissal case after resigning due to unfair treatment by his employer. This is being backed by his union by the way (dunno the full details, just that he resigned, got another job and still taking action). Doesn't sound like similar circumstances to the original question though.

happyhero

If he goes for another job now will the P45 show his previous employer - he was contimplating putting down an employer from before for references etc as he does not believe the last one will give that good a reference, but if the P45 shows the previous employer it will make that difficult to do unless he does some awkward explaining.

What I mean here is that he is tempted to put down the employer he worked for 3 years ago for reference purposes and say he has been self employed since then thus eliminating the problem employer. I said to him this may be a problem due to what it says on the P45.

What do you guys think?

hex2

As a HR person I never let someone to resign rather than go through a dismissal process. This has been for policy reasons and because it opens up a grey area around constructive dismissal.
From an employers perspective it is often far simpler, faster and less risky to allow someone to resign. If your friend felt that his job would go anyway his best bet was to resign. In either case he would get reduced eligibility to benefits, but this way he gets a reference without his former employers needing to lie about what happened.
If the incident was serious and he had long unblemished service, and apologised, he might have got away with a final written warning if his employer was feeling lenient. If they dismissed him for gross misconduct then he would have been paid no notice and had no reference.
Constructive dismissal is a tricky one. You have to have given your employer an opportunity to put it right by following the statutory greivance procedure. Any payout would be reduced by a percentage to reflect how his behaviour contributed to the circumstances - this can be by as much as 100%. If his employer failed to follow stat procedures (eg giving him 24 hours notice of the conversation that led to the choice of resign or be dismissed) the award could be increased by 50%.
I think he has done the best thing. Time to look for another job - agency work is often a good way to cover up something like this rather than have a gap on his cv.
Hope this helps

hex2

Oh, and its a lot harder for an employee to win a constructive dismissal case than it is to win an unfair dismissal case on procedural grounds.