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Can I Take Disciplinary Action While the Employee is Sick?

Employees seem to think that by getting themselves signed off they can avoid disciplinary proceedings. It has become a commonplace reaction for employees who are facing discipline to go sick, usually with stress. Quite often the ill health absence is accompanied by a voluminous letter alleging bullying and harassment. Giving the employee the chance to come and explain his side of the case is a fundamental right and one which you should make every effort to observe. If the absence is likely to be short, you should postpone the hearing. Sometimes employees are signed off for months, making it almost impossible to hear a discipline at the end of that time. If you propose to defer a disciplinary hearing to the date of return, you should make it clear that you propose to do so and sending a clear message that ultimately disciplinary action can’t be avoided.

Stress is capable of being a disability, and a failure to make reasonable adjustments can breach the disability discrimination legislation. You can be caught on the horns of a dilemma. Are you able to take any disciplinary action? The short answer is ‘yes’ but take care because it does carry risks.

You can’t be expected to put off a hearing indefinitely but be wary of going ahead in an employee's absence without very good cause. You should only proceed to hearing if you have told the employee that this is a possibility if he does not attend the meeting and having exhausted all options for getting some "buy-in" to the process from the employee. For example, inviting the employee to make written submissions even if he is not present at the meeting.

It is good practice to consult an occupational health advisor (OHA) with a view to obtaining a medical report on the employee's fitness to participate in the meeting. While an employee may be unfit to do his job it does not necessarily mean he is unable to attend a meeting.

Ask the OHA to comment upon whether the employee is fit to attend a disciplinary meeting. In particular the following questions should be considered:

  • Does the employee have the ability to understand the allegation?
  • Is the employee well enough to respond to the allegation?
  • Is the employee able to instruct a representative to assist them?
  • Does the employee have the ability to provide an explanation in writing?
  • Are there any adjustments to the disciplinary process which could be made to enable the employee to participate?

In the event that the OHA considers that it is not possible for the employee to attend a meeting, you can still consider going ahead with a hearing in his absence on the basis that if the stress is caused by the disciplinary process it is not appropriate to have the matter hanging over the employee's head and by brining matters to a conclusion will be better for the employee’s health. I have seen some really dreadful OHA reports – for example, in one case a report we commissioned said that a man who was facing a gross misconduct matter and had already been off work for almost a year could come able to come back to work for general duties but was too unwell to go through a discipline hearing. We thanked him politely, paid out £200 and then had to get another report which was a bit more realistic so we could progress matters.

If an employee refuses to provide medical evidence regarding any employment-related issue, it’s quite appropriate to make a decision based on the information available. In circumstances where the employee has been dismissed in his absence, you should have a full re-hearing so as to correct any procedural deficiencies in the initial decision.

It is likely that an employment tribunal in any subsequent unfair dismissal case will require a detailed explanation of why the hearing went ahead without the employee present and what efforts the employer had made to secure the employee's attendance and/or suggest alternatives to proceed in the employee's absence. Only in the clearest examples of the employee deliberately avoiding the hearing, obstructing the process or malingering will the tribunal be likely to support an employer's point of view. You should therefore only go ahead where there is clear evidence that the employee is unreasonably refusing to attend the hearing.

It is always sensible in these circumstances to offer a full re-hearing on appeal so as to correct any procedural deficiencies first time around. Finally, if a decision is made in the employee's absence the employer should ensure that there is a clear record of when the notice of dismissal was communicated to the employee.

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