Jumping before being pushed: Will Smith’s recent outburst has got me thinking…

The recent debacle involving Will Smith and the Academy Awards slap attack on Chris Rock has got me thinking about analogous work situations.

As readers will have heard, the A-list actor resigned from the Academy of Motion Picture Arts and Sciences shortly after he slapped comic, Chris Rock, at the televised 94th Oscars’ ceremony.

Notwithstanding his resignation, the Academy, which organises the awards ceremony, determined it would take disciplinary action against Mr Smith.

Mr Smith was thereafter banned from the Oscars Gala and other Academy events for ten years.

While, clearly, Mr Smith is not, and was not, an employee of the Academy, the situation raises an important question:

Can / should disciplinary action be taken by an employer after an employee has resigned?

When an employee resigns with notice

There are two different scenarios here.  The first is where the employee resigns with notice.  In such circumstances, the employer is entirely at liberty to continue and, of course, complete any disciplinary proceedings before the employee’s employment has terminated.  That may mean a warning or final written warning which goes on the employee’s record and may be referred to in any reference provided by their soon-to-be erstwhile employer.  Alternatively, it could mean that the notice period is brought to an early end, with the employee being summarily dismissed in the event the employer believes this is justified in the circumstances.  In other words, the employer’s act of summarily dismissing the employee will supersede the employee’s act of giving notice of resignation.

When an employee resigns without notice

The second scenario is the one which is, in some ways, more interesting and vexing for the HR professional and employment lawyer alike.  Where an employee resigns without notice, they are in technical breach of contract.  There are some circumstances where it may be determined that they were entitled to resign without notice and were, in fact, the innocent party, meaning that they would not be found to have breached the contract. Putting that to the side, however, is an employer entitled to continue with disciplinary action after an employee has resigned with immediate effect?

Is there a benefit to proceeding with disciplinary action?

In my view, the question is really whether there is any benefit in the employer continuing with disciplinary action once an employee has terminated their employment.  In reality, it is often the case that an employee facing serious allegations of misconduct/gross misconduct will have to consider carefully whether they wish to stay and fight the allegations levelled against them or remove themselves from the situation.  Much will depend on the circumstances, but in the event that they decide they wish to remove themselves from the situation, resignation without notice (i.e. with immediate effect) is the clearest and most certain way to do this. 

However, the employer may have their own reasons for continuing with any disciplinary action.  In some circumstances, for example, there may be a legal or statutory obligation to notify a governing professional body of unfitting or unprofessional conduct. This would be the case for those operating in the financial sector and it would also apply to other regulated professionals such as lawyers and doctors.

Aside from those types of situation, there is nothing to be gained by an employer continuing with disciplinary proceedings in respect of an employee who has already left their employment.  The effect of a resignation without notice is that the employee is no longer employed by the employer.  There may be some residual pay or accrued holidays to sort out (and there may, of course, be some post-termination obligations on either party, most likely the employee), but otherwise, the employer/employee relationship is at an end. In such circumstances, the most draconian disciplinary sanction, i.e. dismissal, is not available to the employer as the employee has already left.

In such circumstances, as I say, there is nothing to be gained by an employer in continuing with the disciplinary proceedings. 

What if an employee claims for constructive dismissal post resignation?

In circumstances where an employee resigns and subsequently claims that they were constructively unfairly dismissed, the employer may wish to be able to present to an Employment Tribunal that the employee would have been dismissed fairly in the event that the employee had not resigned. In such a situation, it is open for the employer to run a “Polkey”[1] argument, namely that the employer would have dismissed the employee by X date on substantively fair grounds had the employee remained employed. This can be important when it comes to the Employment Tribunal assessing the merits of the employee’s claim generally, as well as any assessment of actual financial loss resulting from the resignation.

Going back to Will Smith, the analogy of course only goes so far. Clearly, he was not an employee of the Academy and he resigned his membership rather than resigning from his employment. Further, there was a good reason for the Academy to go ahead with disciplinary proceedings notwithstanding his resignation, namely that, had the Academy not handed down a ten year ban, it would have been open to Mr Smith at any time in the next ten years to re-apply for membership.  Issuing a ten year ban means that can’t happen.

[1]Derived from the important case of Polkey v A E Dayton Services Ltd (1987)

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