Attendance at Disciplinary Hearings
I receive many calls from employers who have invited an employee to a disciplinary meeting but are having some difficulty getting them to attend the meeting. This article discusses the most regular reasons that prevent Attendance at Disciplinary Hearings
Depending on the circumstances that led up to you taking disciplinary action your employee may be reluctant to come to the workplace for the disciplinary meeting. In these circumstances try suggesting an alternative location for the meeting such as another office or maybe a meeting room at a local hotel.
The Companion is Not Available
If the companion that your employee has chosen is unavailable on the date you have suggested for the meeting, the employee should let you know as soon as possible and suggest an alternative date. The ACAS Code of Practice states that this should not be more than 5 working days after the date of the original disciplinary hearing.
If it’s not possible to rearrange the meeting within a reasonable time frame you can suggest to the employee that they find an alternative companion who can attend.
I had one client whose employee who was giving them the run around over attendance at a disciplinary meeting. The union rep had other meetings that clashed, he was on a training course, he was on holiday, he went off sick etc etc. I suggested contacting the union rep directly in an attempt to get a firm date in the diary and guess what, it turned out the employee wasn’t even a member of the union and the rep had never heard of him!!! That meeting went ahead without any further delay and without the employee in attendance.
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Read About Companions at Formal Meetings |
Your Employee Goes Off Sick
Sometimes an employee’s response to receiving an invitation to a disciplinary meeting is to go off sick. In these situations, I recommend giving the employee the benefit of the doubt, accept that the illness is genuine and rearrange the meeting for a date as soon as you think the employee will be well enough to attend.
If the sickness is likely to continue for a longer period of time, and particularly when the reason for the absence is stress, I advise seeking medical advice to determine whether the employee, although unfit for work, is well enough to attend a disciplinary meeting. The best way to do this is to engage the services of an Occupational Health Advisor to investigate the problem. Should the employee refuse to cooperate then you would have to question whether the reasons for the absence were genuine. Assuming the report advises that the employee is fit to attend the meeting then provide them with enough notice as stated in your disciplinary policy and inform them that if they fail to attend, without good reason, you will continue with the meeting without them.
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Read About Occupational Health Advisors |
You’ve Rearranged Once and Your Employee Is Again Unable To Attend
My advice has always been that when an employee fails to attend a disciplinary meeting to rearrange at least once. However, the ACAS Code of Practice states that where an employee is persistently unable or unwilling to attend a hearing without good cause then a decision can be made in their absence. Persistent is not defined and there have yet to be any court decisions that clarify this small but important point.
Where an employee does play the system, you will need to warn them in advance that their failure to attend means that the decision will be taken on the evidence available and they should be offered the option of submitting written representations in their absence. Although holding a disciplinary hearing in the employee’s absence should always be the last resort, in exceptional cases, even a decision to dismiss taken in the employee’s absence can be fair. In Bashir v Sheffield Teaching Hospital NHS Trust (2010) the Employment Appeal Tribunal (EAT) upheld a Tribunal’s decision that a married couple who were also employees had not been unfairly dismissed or suffered racial discrimination despite the employer holding their grievance and disciplinary hearings in their absence. This was because the employees had behaved unreasonably and in an obstructive manner.
Fair Process Still Matters
Employers can understandably become frustrated when disciplinary hearings are repeatedly postponed or when employees fail to attend scheduled meetings. However, frustration should never replace a fair and reasonable process.
Whilst there may be circumstances where it is appropriate to proceed in an employee’s absence, employers should first consider the reasons for the non-attendance and whether alternative arrangements are available.
Before making a decision, employers should consider:
- the reason provided for the employee’s absence,
- whether medical evidence has been supplied,
- the number of previous postponements,
- whether the employee has engaged with the process,
- whether alternative dates have been offered,
- whether a remote hearing may be appropriate, and
- whether proceeding in the employee’s absence would be reasonable in all the circumstances.
Each situation should be assessed on its own facts. An employee who is genuinely unable to attend due to ill health may need to be treated differently from an employee who is repeatedly avoiding the process without good reason.
Employment Tribunals will often focus on the reasonableness of the employer’s actions rather than simply whether the employee failed to attend. Being able to demonstrate that alternatives were considered, evidence was reviewed and a fair process was followed can be just as important as the final decision itself.
A process-led approach helps employers reach defensible decisions while reducing the risk of grievances, appeals and Employment Tribunal claims.
Virtual Disciplinary Hearings
Since this article was first published, remote working and video conferencing have become a normal part of working life. As a result, many employers now conduct disciplinary hearings using platforms such as Microsoft Teams, Zoom or Google Meet where appropriate.
A virtual hearing will not be suitable in every situation, but it can be a practical alternative where attendance is difficult and delaying the process indefinitely would be unreasonable.
For example, a remote hearing may be appropriate where:
- an employee is absent due to illness but is well enough to participate remotely,
- the employee works remotely or is based at a different location,
- travel arrangements make attendance difficult,
- a disability or health condition makes remote attendance more suitable, or
- the employee is temporarily unable to attend in person but is willing and able to participate virtually.
Where a virtual hearing is proposed, employers should ensure that the employee can participate effectively, review the evidence, ask questions, present their case and be accompanied where they have the statutory right to do so.
The fact that a hearing takes place remotely does not remove the requirement to follow a fair disciplinary process. Employers should still provide adequate notice, share relevant documentation in advance and keep an accurate record of the meeting and any decisions made.
In some situations, offering a virtual hearing may demonstrate that the employer has taken reasonable steps to facilitate attendance before considering whether it is appropriate to proceed in the employee’s absence.
GDPR And Documentation
Employers should keep clear records of invitations, postponements, medical evidence, correspondence and decisions relating to attendance. These records may later become important during appeals, grievances, subject access requests or Employment Tribunal proceedings.
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