Question and Answers

Here are a couple more of the questions – and our outline answers – following our recent webinar on Disciplinary Issues in the Workplace.

Can a disciplinary hearing be held in an employee’s absence?

Yes, potentially, although this should usually be a last resort.

As a general rule, disciplinary hearings should be conducted in person with the employee concerned. Sometimes, it may be appropriate for them to take place virtually, e.g. if the employee works remotely and is unable to access the employer’s premises easily or if doing so would be a reasonable adjustment for a disability.

If an employee says they are unable to attend a disciplinary hearing due to sickness then, as discussed on the webinar, the employer will be expected to take a number of steps before going ahead and holding the meeting in the employee’s absence, e.g. offering to rearrange the meeting until they are fit to attend (depending on the likely length of any sickness absence), obtaining medical advice, etc.

If an employee simply repeatedly fails to attend a disciplinary hearing without good reason then it may be appropriate to conduct the meeting in their absence. But even then a Tribunal will expect an employer to have taken steps to get the employee to attend the meeting – and warned them of the consequences of not doing so – before simply going ahead in their absence.   

If an employer decides that the hearing is to take place even though the employee cannot attend, it should also consider asking the employee to put forward their case in an alternative way, for example, in writing or by a representative, having first made it clear to the employee the consequences of a failure to attend.

An employer should also ensure it complies with its own policies and procedures if they contain any guidance on this situation.

As discussed on the webinar, the important thing is that employers are seen to be acting reasonably.  It is also important that they note the steps they have taken to ensure a fair hearing in case their decision is subsequently challenged in a Tribunal, in particular a full written rehearsal of any points they think the employee would or could have made on their own behalf by way of defence or mitigation and of their responses to those points. There should be no assumption that a no-show is an admission of guilt; the employer still has to get to that conclusion under its own steam.

What should we do if an employee goes off sick during the investigation stage?

During the webinar we discussed the steps an employer should take if an employee goes off sick during the disciplinary process – the points discussed apply equally to the investigation stage. There is rarely a single definitive Right Way to handle such cases. The key thing is that the employer is seen to have acted reasonably in the circumstances it faced at the time.

In terms of the employer’s approach, a great deal will depend on how long the employee is likely to be off work, and what they are off with. If it is just going to be a matter of days, or even a few weeks, then the employer should usually just wait until they return before carrying on the investigation.  It may however be possible to make necessary enquiries even if the employee is not in work, e.g. collating relevant documents, speaking to potential witnesses, etc. 

If the employee is unable or unwilling to indicate when they will be in a position to attend an investigatory meeting, the employer may wish to speak to them to see if they are able to respond by other means, e.g. in writing.  As discussed on the webinar the employer should if appropriate also seek medical advice to see what the employee is capable of – they may not be fit enough to return to work, but may well be able to respond to questions in writing/meet with the employer to discuss them. Note the DWP Guidance to GPs and Occupational Health professionals in its ‘Health and Work Handbook’ about the general desirability of cracking on with these things despite the employee’s discomfort. See our blog on this here – the level of incapacity from which you must be suffering to justify medical advice not to participate in such a meeting should be very high, though sadly that often seems not to be the case in practice.

It is important that the employer does not allow matters to slip – it should monitor the situation and ensure that things do not get forgotten if the employee remains on sick leave.  It should also document the steps it has taken to meet with the employee and their response in case there is any dispute at a later stage. Only on receipt of professional medical advice that the employee is unable to engage with the disciplinary or investigatory process should the employer back off, and even then, only for a short and finite period. Otherwise, a requirement that the employee maintains contact with the employer and participates in normal internal processes will generally be a reasonable management instruction.

If you missed Part 1 of this series, it’s available to read here.