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.
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.
If the OHA advises that the employee is unfit to attend the meeting then ask them to confirm how long it should be postponed for.
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.