What happens if an employee resigns during a disciplinary process?

Recently, a business associate asked me whether he should continue with a disciplinary process if the subject of the investigation had resigned.

Ultimately, of course, the answer is that depending on the contractual status of the individual concerned, the decision on whether to proceed or not is very much down to the employer.

But there are several factors to consider.

The contractual consideration

The employment or contractual status of an employee who resigns whilst they are the subject of a disciplinary process is the first thing you need to think about.

If they have no notice period written into their contract and resign with immediate effect then there would seem to be little point in continuing with a process that is unlikely to arrive at any implementable conclusion.

You can’t terminate the contract because in law it no longer exists. It’s possible, though unlikely, that the individual has already been paid a salary sum that would be worth the time and expense needed to recover it.

In this scenario, pragmatism alone would suggest the prudent option would be to discontinue the process and, if the likely outcome would have been dismissal, be grateful for the fact the problem is off the table.

If, however, the subject of a disciplinary process resigns during their notice period, and the process is expected to conclude before that period ends, then it may be worth continuing.

Continuing in this context may be worthwhile if not doing so leaves the business exposed to a potentially significant and avoidable financial risk (e.g. a large severance payment that would be avoided in the event of a finding that results in termination of employment).

Proceeding with a disciplinary process if the individual has resigned during their notice period is a judgement call based on a number of different factors.

Will you complete it before the notice period ends?

Depending on the nature of the investigation that will be needed to properly and fairly investigate the allegations that have been made, a disciplinary process can be relatively quick, or it may take several weeks or even months.

Does your organisation have the capacity to see it through if it doesn’t have to?

Undertaken correctly a thorough disciplinary process may involve different layers of oversight that include HR teams, senior managers, line managers and unions to ensure the process is as open and fair as it can possibly be.

You will need to weigh up the advantages and disadvantages of tying up lots of people in a process whose outcome is already known. These pros and cons may relate to time, effort, expense, impact on the workplace culture, and matters of principle.

How important are the principles at stake?

As a business, you may wish to be seen to be acting in response to serious claims or allegations that have been made and in order to uphold your organisational values, it may be important in the culture of your business to follow the process through to a conclusion.

If you have already established that there is a case to answer, and your initial investigations have led you to believe some form of disciplinary action is likely, then you may also want to ensure the process becomes a matter of record.

Equally, it may be the circumstances that have led to the process are not particularly serious and you feel there is no reputational risk to the business in abandoning your investigation.

In the end, disciplinary processes are usually unpleasant and generate unwanted, if inevitable, conflict.

Whilst it’s right to investigate claims of wrongdoing fully and completely for as long as it makes sense to do so, it’s perfectly legitimate to consider the benefits of abandoning the process when an employee is guaranteed to leave the business – just as it is legitimate to press on with it.

If you’d like to find out how Constantia Consulting can support you in running a disciplinary process, and make the business critical decisions necessary along the way, please get in touch for a confidential and no-obligation chat.