Document Actions
Gross misconduct in employment law - can one resign before the final hearing?
If you were a PAYE employee facing a legitimate charge of gross misconduct (with all proper procedures followed and a final outcome hearing to follow shortly), where the outcome is 99% certain that you will be sacked (as another employee already has been), is it legal for them to resign before the final gross misconduct hearing? In other words, if you are facing a legitimate charge of gross misconduct, is it legal for an employee to hand in their resignation mid-procedure? Or does that person have no option but to wait and until the conclusion of the gross misconduct hearing before resigning? Would this situation be different if the employee was not PAYE but a self employed contracted worker also facing a charge of gross misconduct but also wanting to resign beforehand (would he be able to claim monies owed for work done prior to his gross misconduct charge or, because he is contracted out, would he have no entitlement to this money following either the end of his gross misconduct or resignation)?
From the circumstances you describe it would appear that a person seeks to resign before facing the inevitable decision of a dismissal. It is perfectly possible to do this. If an employee resigns and gives notice in these circumstances then their employment ends at the end of the notice period. However, the employer is entitled to proceed with the hearing and reach a decision of gross misconduct and dismiss in the employees absence during the notice period.
If the employee resigns 'with immediate effect' then the employer can accept this and would then be under an obligation to pay up to the date of the resignation. This would be the most likely outcome. If the employer then refused to pay any outstanding holiday pay etc. it could be difficult to recover this because the employer could counterclaim for the failure to give proper notice.
The best advice in these circumstances is to approach the employer and seek to reach agreement. Most employers would prefer to resolve the matter sensibly.
In equivalent circumstances but where the 'worker' is self employed then much depends upon the terms of the original contract but in principle terms such as 'gross-misconduct' do not apply. A self employed contract worker should terminate the contract with immediate effect and demand payment for work done to date. This claim would be subject to a counterclaim from the other party for any financial loss.
For example, if a self employed electrician had done £1000 worth of work but was facing termination of the contract for being drunk on duty then provided their work up to the date of termination had been adequate they would be entitled to be paid.
If they were facing termination because their work was of poor quality and it would cost the other party money to correct errors then they would struggle to recover the cost of work to date.
Again the best advice would be to seek agreement.
Important! Ask your own free questions... Questions are answered accurately at the time they are posted but the law can change or your circumstances may differ in an important but not obvious way from those mentioned. For fast, free and up-to-date personal legal advice direct to your inbox about your own individual case ask Law Answers your own free legal question.
