Disciplinary hearing myths: case study 2

Caroline Noblet of Squire Sanders concludes a series of articles on disciplinary hearing myths with a second case study, which looks at a situation in which an employer wants to go ahead with a disciplinary hearing in the employee's absence. 

Lucy works in the sales team at Fast Sales Ltd. Lucy has a reputation for poor timekeeping and often starts her shift late. Lucy's line manager, Tom, has tried to address the problem informally, without success. He decides to initiate the company's disciplinary procedure. Following an investigation, which establishes that there are no mitigating factors to account for Lucy's persistent lateness, he invites her to attend a disciplinary hearing to address the issue. On the morning of the hearing, Lucy telephones Fast Sales' sickness reporting line saying that she has flu. Tom is due to go on holiday in a week's time for two weeks. Tom believes that Lucy's flu is not genuine as she was perfectly well the previous day. He suspects that she hopes that Fast Sales will drop the disciplinary matter if it cannot hold the hearing before he goes on leave. He wants to go ahead with the hearing regardless of her absence so that it can be concluded before he goes on holiday.

Can Fast Sales Ltd go ahead with Lucy's disciplinary hearing given the likely delay to the disciplinary process if it does not?

It is not unusual for employees to "go off sick" when they are invited to attend a disciplinary hearing. Although the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) requires employers to hold disciplinary hearings without unreasonable delay, it also states that an employer should make a disciplinary decision in an employee's absence only if the employee is "persistently unable or unwilling to attend a disciplinary meeting without good cause". Although "persistently" is not defined in the code, it is unlikely that it would cover Lucy's one failure to attend a scheduled disciplinary hearing. Therefore, it would be difficult for Fast Sales to justify proceeding with the hearing in her absence at this stage, despite her manager's doubts that her illness is genuine.

Tom should investigate the reason for Lucy's non-attendance and its likely duration. If there is no evidence on which he can base his opinion that her illness is not genuine and it appears that her absence is likely to be short term, Fast Sales should arrange a new hearing date for when Tom returns from holiday. By doing so, the company will not only give Lucy sufficient time to recover from her apparent illness but also give her more time to prepare her response to the allegations against her, thereby increasing the likelihood of its disciplinary procedure being found to be reasonable. It is important that Fast Sales is seen to have acted reasonably if it is successfully to defend its disciplinary decision and process if it subsequently dismisses Lucy and she brings an employment tribunal claim against it. Unless Fast Sales is able to prove that Lucy is lying about her illness, its suspicion that she might not be ill is not a good reason for it to depart from its normal disciplinary procedure.

Lucy returns to work while Tom is on holiday. She receives a letter from Tom (written before he went away) inviting her to a disciplinary hearing after he returns. Lucy goes off sick again, telling Ben, the company's HR manager, that a long-term back injury is preventing her from coming into work. She also says that she is unsure when she might be well enough to attend a rearranged hearing. Like Tom, Ben suspects that Lucy is hoping to avoid the disciplinary process. He thinks that she hopes that disciplinary action against her will be "forgotten about" if she stays off work for long enough.

How should Fast Sales deal with this situation?

Lucy's continued sickness absence does not mean that Fast Sales must wait until she returns before it can proceed with the disciplinary process. However, it should take care if it is considering holding the rearranged hearing in her absence. There are other options that it should explore first. Ben will need to look at all the facts and come to a reasonable decision on how to proceed. He should consider postponing the hearing, obtaining a medical certificate or report about Lucy's medical condition and/or making adjustments to the disciplinary process that will enable Lucy to attend the hearing. The Discipline and grievances at work: Acas guide (PDF format, 898K) (also on the Acas website), which supports the code, sets out a number of factors that employers should bear in mind when deciding how to proceed if an employee is unable or unwilling to attend a hearing. These include the seriousness of the disciplinary issue under consideration, the employee's disciplinary record and "medical opinion on whether the employee is fit to attend the meeting".

In this case, given the potential long-term nature of Lucy's sickness absence, it would be appropriate for the company to obtain a medical report. Ben should write to Lucy's doctor (after obtaining her permission and reminding her of her rights under the Access to Medical Reports Act 1988) to seek further details of her condition and to establish if and when she might be well enough to attend a disciplinary hearing. He should also ask her doctor's advice as to whether or not there are adjustments that the company can make to facilitate her attendance at the hearing, such as allowing her to take regular breaks to rest her back or holding the hearing at a venue closer to Lucy's home so that she does not have to travel to the office. Seeking a medical report may also be a way for Fast Sales to expose any misrepresentation by Lucy about her back injury.

Ben receives a medical report from Lucy's doctor, which suggests that she is fit to attend a disciplinary hearing provided that the company allows her to take regular breaks during the course of the hearing. Ben writes to her to invite her to the disciplinary hearing on this basis.

The next topic of the week article will be the first in a new series on employment law myths, focusing on myths around redundancy, and will be published on 6 August.

Caroline Noblet (caroline.noblet@squiresanders.com) is a partner at Squire Sanders.

Further information on Squire Sanders can be accessed at www.squiresanders.com.