Seeking an outside opinion: resigning while off sick and unresolved investigation

Zaxb

Hi,

Seeking an objective outside opinion on a difficult situation. My partner is currently off sick with anxiety following several traumatic events last year. The principal cause [as detailed on her fit notes] being bereavement after losing two close family members in separate incidents.

She has come to the conclusion that in order to recover her mental wellbeing she needs to leave her current employment. This is mainly due to a breakdown of her relationship with her direct supervisor as events which had been occurring over the past two years finally came to a head with their response to some incidents which happened at work while she was stressed over the health on one relative (who subsequently passed away) and the unexpected death of another shortly afterwards.

I won't go into massive detail but the salient points are that the supervisor has used the opportunity created by two separate breaches of smoking policy while under stress to escalate into formal investigations. The first took three months to conclude with the outcome being a decision of no further action being warranted and no record to be placed on her file. During this investigation period the first relative sadly passed away. Shortly following the second bereavement she was again reported for a breach of policy - involving smoking in a public space - by the same supervisor despite knowing about this second bereavement (the funeral having been the previous week). This means she has had two protracted investigations during bereavement, the first ever disciplinary actions in a career of over 25 years with the same employer. The investigating officer informed her in November that they had concluded their part and had passed their findings on to a senior manager to decide whether it needed to be progressed.

It is now mid-January and she still has not been informed of whether further action will occur. I have tried to reassure her that it won't as on reading the smoking policy she has not committed a breach, but it has been weighing on her mind and preventing her moving on from bereavement and other traumatic life events which happened at the end of the year. Hence her decision to leave as the thought of returning now terrifies her and having this still hanging over her is affecting her recovery.

She simply wants to close this and move on. She has no intention of raising a grievance and the only reason she did not resign earlier was being advised to wait until the investigation concluded to prevent it appearing in references as an unresolved investigation. She has asked for updates but so far the manager it was passed to is not being responsive, and HR simply bat queries back to them.

I fully support her decision to leave but is there anything we should be aware of, and is there any way of forcing an ex-employer to complete a formal disciplinary process. As I say, the investigation phase completed in November.

Veteransaver

I don't think there's any real reason to really stop her resigning, but if she's got 25 years service with them it might be worth trying to get some sort of compromise agreement (kind of like a redundancy) if she really wants to go.
But be wary of resigning, the company may or may not want rid of her. But if they do want rid of her then just resigning plays right onto their hands as they don't need to pay any severance or anything.
On the other hand if she's been there 25 years they may regard her as a valued employee and not want to lose her and are just taking time with the investigation.
If she's likely to need to claim benefits then resigning from a job can make claiming difficult.
Is she currently receiving any enhanced sick pay or is it just statutory? Many employers do like to look after their staff, and can be very compassionate in supporting them, especially long serving employees.
Is she actually expecting to be fired (it's difficult for them to do this unless it's gross misconduct) or just receive a disciplinary note put on file? Or could they actually be investigating her supervisor as well?
If the investigation was completed in November and they decided they had grounds to fire her then they would have done so by now I would have thought. HR may just be wary of contacting her whilst she is off sick.
Or they may just be dragging it out hoping she will resign if she's hinted she will resign, it's really difficult to tell from your post!

elsien

Veteransaver said:

I don't think there's any real reason to really stop her resigning, but if she's got 25 years service with them it might be worth trying to get some sort of compromise agreement (kind of like a redundancy) if she really wants to go.
But be wary of resigning, the company may or may not want rid of her. But if they do want rid of her then just resigning plays right onto their hands as they don't need to pay any severance or anything.
On the other hand if she's been there 25 years they may regard her as a valued employee and not want to lose her and are just taking time with the investigation.
If she's likely to need to claim benefits then resigning from a job can make claiming difficult.
Is she currently receiving any enhanced sick pay or is it just statutory? Many employers do like to look after their staff, and can be very compassionate in supporting them, especially long serving employees.
Is she actually expecting to be fired (it's difficult for them to do this unless it's gross misconduct) or just receive a disciplinary note put on file? Or could they actually be investigating her supervisor as well?
If the investigation was completed in November and they decided they had grounds to fire her then they would have done so by now I would have thought. HR may just be wary of contacting her whilst she is off sick.
Or they may just be dragging it out hoping she will resign if she's hinted she will resign, it's really difficult to tell from your post!

What severance? Whether she resigns or they terminate her employment she will still get her notice pay and any holidays still owed. There is no obligation to pay any more than that in a non-redundancy situation. 

OP, how long has she been off sick for and what is the companies sick pay policy? 

cr1mson

Can I ask how the timelines work in terms of when the incidents occurred and her sick leave was? When the 2nd incident's investigation concluded was she on sick leave? Just asking as I know some organisations will only make contact during sick leave for specific reasons. 

Although the investigation has been completed there may be something that needs to be done that requires your partner to participate in and they don't want to do this whilst they are on sick leave. 

Zaxb

It is a public sector employer which means that she has been receiving enhanced sick pay. She would not be intending to claim benefits (bad memories of nightmare dealing with child support payments from decades ago) and may consider taking early retirement.

She would not be intending to return to work within the notice period as her fit line covers her.

She is not looking for severance.

The employer probably does value her, but the supervisor does not.

I do not expect her to be fired. The first investigation last year was her first ever disciplinary action and effectively was thrown out, so in practice this current process is her "first" investigation. To be fired for a first offence involving a smoking policy which she does not even appear to have breached would be pushing it. The slight worry is that the supervisor knows this, was not happy that their first attempt failed, and may be pushing for some dereliction of duty which we are unaware of but may be painted as gross misconduct. Without it progressing to the next stage and being issued with formal accusations it is impossible to tell. There are other factors here, including possible WTD violations by employer exposed in first investigation, which may be making them wary about this case as they may be anticipating a potential tribunal - but that is not our intended destination.

My suspicion is that there are two separate processes here - long term absence and disciplinary - which although related are being treated as separate processes by a cumbersome organisation with each being hindered by the presence of the other. In effect, those with responsibility for one waiting to see the impact of the other. She has made it clear that her absence is not a hindrance to cooperating in any disciplinary hearing and that she wants this resolved asap. She has not intimated her decision to resign as yet so any thoughts the employer might have with regards to that would simply be based on previous experience with intersecting absence and investigations.

While there are some pretty shocking aspects of behaviour which add to her disillusionment and may under different circumstances have been used to try and leverage a "managed exit" the simple truth is that the stress of it all simply leaves her totally wanting to walk away and leave it all behind her.

Our practical concern is that there appears to be no formal way of making an employer conclude a disciplinary action??

elsien

She could make a grievance about the length of time it is taking?

What does the disciplinary policy say about timescales?

Undervalued

elsien said:

Veteransaver said:

I don't think there's any real reason to really stop her resigning, but if she's got 25 years service with them it might be worth trying to get some sort of compromise agreement (kind of like a redundancy) if she really wants to go.
But be wary of resigning, the company may or may not want rid of her. But if they do want rid of her then just resigning plays right onto their hands as they don't need to pay any severance or anything.
On the other hand if she's been there 25 years they may regard her as a valued employee and not want to lose her and are just taking time with the investigation.
If she's likely to need to claim benefits then resigning from a job can make claiming difficult.
Is she currently receiving any enhanced sick pay or is it just statutory? Many employers do like to look after their staff, and can be very compassionate in supporting them, especially long serving employees.
Is she actually expecting to be fired (it's difficult for them to do this unless it's gross misconduct) or just receive a disciplinary note put on file? Or could they actually be investigating her supervisor as well?
If the investigation was completed in November and they decided they had grounds to fire her then they would have done so by now I would have thought. HR may just be wary of contacting her whilst she is off sick.
Or they may just be dragging it out hoping she will resign if she's hinted she will resign, it's really difficult to tell from your post!

What severance? Whether she resigns or they terminate her employment she will still get her notice pay and any holidays still owed. There is no obligation to pay any more than that in a non-redundancy situation. 

OP, how long has she been off sick for and what is the companies sick pay policy? 

Although what you say is correct, this is a situation where many companies might consider a modest settlement agreement (formally called a compromise agreement) to protect themselves against any possible claim.

Also, the general advice in these sort of situations is not to resign but let the company make all the moves. If the OP's partner has made up their mind that they definitely want to leave then all they need to do is remain off sick and drag their heels. All the time they remain on the books that are accruing paid holiday ( just over a day for every two weeks) plus they may be entitled to full pay for the 12 weeks notice the company would be obliged to give them.

Marcon

Zaxb said:

She has come to the conclusion that in order to recover her mental wellbeing she needs to leave her current employment.

Hence her decision to leave as the thought of returning now terrifies her and having this still hanging over her is affecting her recovery.

She simply wants to close this and move on. She has no intention of raising a grievance and the only reason she did not resign earlier was being advised to wait until the investigation concluded to prevent it appearing in references as an unresolved investigation. 

Zaxb said:

She would not be intending to claim benefits (bad memories of nightmare dealing with child support payments from decades ago) and may consider taking early retirement.

She would not be intending to return to work within the notice period as her fit line covers her.

She is not looking for severance.


 the simple truth is that the stress of it all simply leaves her totally wanting to walk away and leave it all behind her.

Our practical concern is that there appears to be no formal way of making an employer conclude a disciplinary action??

Picking out selected extracts from your posts, surely you already have your answer to what needs to happen in the best interests of her health?


Who gave the advice about staying in post to stop this appearing in a reference as an 'unresolved investigation' - is it the employers policy to give that level of detail? Even if it did, there's an element of 'So what?' about it, especially if early retirement is in her mind. It may be better to raise that possibility with the employer while she is still in employment, as there could be a 'better' pension on offer by retiring from active service rather than waiting (not necessarily the case, but worth checking, assuming she is aged at least 55).

Zaxb

elsien said:

OP, how long has she been off sick for and what is the companies sick pay policy? 

She has been off for 3 months. The sick pay policy is 6 months full pay then half pay.

(As the supervisor spent most of last year telling her in a blatant attempt to try to persuade her to do just that - even before the bereavements occurred).

The truth is that she is just totally fed up and any thought of further involvement with work - including attending supported absence meetings simply fills her with dread. She is very stressed and fragile.

Undervalued said:

Also, the general advice in these sort of situations is not to resign but let the company make all the moves. If the OP's partner has made up their mind that they definitely want to leave then all they need to do is remain off sick and drag their heels. 

Money is of course useful but it simply isn't worth it for the stress she feels from having it hanging over her. Also, having made up her mind that she cannot continue she is not the sort of person who would be comfortable with taking that money knowing she would be leaving anyway.

This is 100% the time to leave for her health - to give her a chance to relax and breathe - but it is really a question of making sure she isn't making some technical foo-pah in the resignation process.

cr1mson said:

Can I ask how the timelines work in terms of when the incidents occurred and her sick leave was? When the 2nd incident's investigation concluded was she on sick leave? Just asking as I know some organisations will only make contact during sick leave for specific reasons. 

Although the investigation has been completed there may be something that needs to be done that requires your partner to participate in and they don't want to do this whilst they are on sick leave. 

She was on sick leave throughout the investigation. She received the letter telling her that she was under investigation while off, and corresponded with the investigating officer in writing to make sure she fully contributed to it - including answering any follow up questions as they arose. She has cooperated and has made it clear that she would continue to do so if it went further. As such I really cannot see that as being a valid reason for not telling someone the outcome, or progressing it if that was the decision. If they are willing to run the investigation while she is off sick (with her full cooperation) then leaving her hanging to decide what happens next simply does not match the ACAS guidelines (which the employer is signed up to following) about informing employees as soon as possible, and shows very little consideration to the mental wellbeing of a long standing staff member who they know is currently suffering from very high levels of anxiety.

It could well be that they are trying to put off having to make a decision waiting to see when/if she returns but to my mind that is poor and lazy practice and after 25 years of service leaves a very poor taste in the mouth. She is rightly proud of the work she has done over that time and leaving under such a cloud is not how she would want to be remembered or to have as her last work memory. Through this action they have raised a question mark about her performance which she very much wishes to have resolved, but remaining at that work simply to be able to do so is a price in terms of mental health which she simply cannot pay.

elsien said:

She could make a grievance about the length of time it is taking?

What does the disciplinary policy say about timescales?

There are many aspects which could have potential to result in a grievance but the whole point is that she is trying to put stressful situations such as formal process and meetings behind her and raising a grievance is not on her agenda.

The policy is very clear on timescales once an investigation has been seen by senior management as warranting further action (seven days notice to hearing and outcomes in writing within ten days) but gives no timescales for reporting outcomes from investigation. It simply states that "before disciplinary action is taken the manager must be satisfied that the circumstances have been adequately investigated and that they are in possession of sufficient information to be able to make a fair decision." The investigating officer reported their involvement had ended in November.

It was not a complicated situation. It happened in a public space, a private residential area - not on or near any work premises. There was one witness - another staff member. My partner gave full and frank admission about what had happened - she is and always has been 100% honest (even when it would be prudent not to be). She knows that she was unwise in her actions given the crosshairs which her supervisor had placed her under but she was under severe mental strain at the time having just buried a second close family member in a short space of time. There simply does not seem to be any scope for there to be any other evidence. The incident in itself is very innocuous. The delay in anything happening simply feeds her anxiety about her supervisor (who was not present at the incident) potentially painting it as something more serious that it was. Though exactly what that serious thing might be, if indeed it is being spun, we do not know as under disciplinary rules we do not get sight of the investigating officer's report and would only ever know if it was progressed to a formal disciplinary hearing.

There seems to be no easy recourse to forcing an employer to expediate the outcomes in between the investigation and disciplinary stages and no way of making the employer close the case. All queries as to progress/status all come back to the manager who is not communicating. Queries to HR are batted back to the investigating officer who then bats it back to the manager. My partner does not want to leave with this unresolved but there seems no way of getting it resolved, and leave she must. But a big part of that decision to leave is to be able to get closure and forget about the horrors of the past year - which will not be complete while this remains unresolved as it will be a further niggling worry for her.

My recommendation is to specify in her resignation letter that although she is leaving that she really wants it to progress to formal closure - whatever form that takes - but there does not seem to be any formal mechanism to ensure that happens - or even to ensure that she is informed of it after she has left.

 

Undervalued

Zaxb said:

elsien said:

OP, how long has she been off sick for and what is the companies sick pay policy? 

She has been off for 3 months. The sick pay policy is 6 months full pay then half pay.

(As the supervisor spent most of last year telling her in a blatant attempt to try to persuade her to do just that - even before the bereavements occurred).

The truth is that she is just totally fed up and any thought of further involvement with work - including attending supported absence meetings simply fills her with dread. She is very stressed and fragile.

Undervalued said:

Also, the general advice in these sort of situations is not to resign but let the company make all the moves. If the OP's partner has made up their mind that they definitely want to leave then all they need to do is remain off sick and drag their heels. 

Money is of course useful but it simply isn't worth it for the stress she feels from having it hanging over her. Also, having made up her mind that she cannot continue she is not the sort of person who would be comfortable with taking that money knowing she would be leaving anyway.

This is 100% the time to leave for her health - to give her a chance to relax and breathe - but it is really a question of making sure she isn't making some technical foo-pah in the resignation process.

cr1mson said:

Can I ask how the timelines work in terms of when the incidents occurred and her sick leave was? When the 2nd incident's investigation concluded was she on sick leave? Just asking as I know some organisations will only make contact during sick leave for specific reasons. 

Although the investigation has been completed there may be something that needs to be done that requires your partner to participate in and they don't want to do this whilst they are on sick leave. 

She was on sick leave throughout the investigation. She received the letter telling her that she was under investigation while off, and corresponded with the investigating officer in writing to make sure she fully contributed to it - including answering any follow up questions as they arose. She has cooperated and has made it clear that she would continue to do so if it went further. As such I really cannot see that as being a valid reason for not telling someone the outcome, or progressing it if that was the decision. If they are willing to run the investigation while she is off sick (with her full cooperation) then leaving her hanging to decide what happens next simply does not match the ACAS guidelines (which the employer is signed up to following) about informing employees as soon as possible, and shows very little consideration to the mental wellbeing of a long standing staff member who they know is currently suffering from very high levels of anxiety.

It could well be that they are trying to put off having to make a decision waiting to see when/if she returns but to my mind that is poor and lazy practice and after 25 years of service leaves a very poor taste in the mouth. She is rightly proud of the work she has done over that time and leaving under such a cloud is not how she would want to be remembered or to have as her last work memory. Through this action they have raised a question mark about her performance which she very much wishes to have resolved, but remaining at that work simply to be able to do so is a price in terms of mental health which she simply cannot pay.

elsien said:

She could make a grievance about the length of time it is taking?

What does the disciplinary policy say about timescales?

There are many aspects which could have potential to result in a grievance but the whole point is that she is trying to put stressful situations such as formal process and meetings behind her and raising a grievance is not on her agenda.

The policy is very clear on timescales once an investigation has been seen by senior management as warranting further action (seven days notice to hearing and outcomes in writing within ten days) but gives no timescales for reporting outcomes from investigation. It simply states that "before disciplinary action is taken the manager must be satisfied that the circumstances have been adequately investigated and that they are in possession of sufficient information to be able to make a fair decision." The investigating officer reported their involvement had ended in November.

It was not a complicated situation. It happened in a public space, a private residential area - not on or near any work premises. There was one witness - another staff member. My partner gave full and frank admission about what had happened - she is and always has been 100% honest (even when it would be prudent not to be). She knows that she was unwise in her actions given the crosshairs which her supervisor had placed her under but she was under severe mental strain at the time having just buried a second close family member in a short space of time. There simply does not seem to be any scope for there to be any other evidence. The incident in itself is very innocuous. The delay in anything happening simply feeds her anxiety about her supervisor (who was not present at the incident) potentially painting it as something more serious that it was. Though exactly what that serious thing might be, if indeed it is being spun, we do not know as under disciplinary rules we do not get sight of the investigating officer's report and would only ever know if it was progressed to a formal disciplinary hearing.

There seems to be no easy recourse to forcing an employer to expediate the outcomes in between the investigation and disciplinary stages and no way of making the employer close the case. All queries as to progress/status all come back to the manager who is not communicating. Queries to HR are batted back to the investigating officer who then bats it back to the manager. My partner does not want to leave with this unresolved but there seems no way of getting it resolved, and leave she must. But a big part of that decision to leave is to be able to get closure and forget about the horrors of the past year - which will not be complete while this remains unresolved as it will be a further niggling worry for her.

My recommendation is to specify in her resignation letter that although she is leaving that she really wants it to progress to formal closure - whatever form that takes - but there does not seem to be any formal mechanism to ensure that happens - or even to ensure that she is informed of it after she has left.

 

There isn't I'm afraid.

You mention ACAS guidelines which are just that. The days of statutory procedures, which lead to automatic tribunal awards if they weren't follow to the letter are long gone. You say the firm are signed up to following the guidelines but I bet that is couched in terms like "normally" or "usually". In any case there is no useful remedy open to her if they don't follow them.

Also you say

The policy is very clear on timescales once an investigation has been seen by senior management as warranting further action (seven days notice to hearing and outcomes in writing within ten days) but gives no timescales for reporting outcomes from investigation. It simply states that "before disciplinary action is taken the manager must be satisfied that the circumstances have been adequately investigated and that they are in possession of sufficient information to be able to make a fair decision.

But again, there is almost nothing she can do about it if they fail to follow the policy. If she was dismissed then making a tribunal claim for unfair dismissal she could potentially add a claim for wrongful dismissal. However all that would yield is a few extra days pay for how ever much longer it would have taken to follow the policy. That of course assumes there is a contractual requirement to follow the "policy" which in a well drafted employment contract there wouldn't be!

lincroft1710

You say

"She is rightly proud of the work she has done over that time and leaving under such a cloud is not how she would want to be remembered"


Peoples' memories can be very short regarding coworkers who have left and the actual work done could be forgotten or even archived. Your partner should not worry about this.