Disciplining employees in their absence: employers beware!

There may be occasions when employers have to take disciplinary action against employees in their absence but this carries legal risks.

The recent dismissal of Gus Poyet from his post as Manager of Brighton & Hove Albion Football Club live on BBC TV is a timely reminder for employers to beware when disciplining and dismissing an employee in their absence.

Background

Communication by email, text message, social media, and instant messaging devices is now common and it is unsurprising that these methods are infiltrating the workplace.

Employers use a variety of methods to communicate with employees involved in a disciplinary process. In addition to the traditional use of recorded delivery letters, emails, text messages, and phone calls are often used to keep employees informed about the process.

Despite the various forms of communication available, however, many organisations are often faced with employees that are unwilling or unable to attend a disciplinary hearing.

What can an employer do when an employee fails to attend a hearing?

Employees often seek to avoid disciplinary hearings, perhaps in an attempt to put off the inevitable or through a desire to have more time to consider their position or because of the non-availability of their chosen companion.

The ACAS Code of Practice states that if an employee fails to attend a first meeting it will usually be good practice for the employer to re-arrange the meeting to an alternative day in order to give the employee a further chance to attend.

In the event that the employee persistently seeks to postpone the meeting or simply fails to attend without good reason, a decision may need to be taken in the employee's absence. Employers can not be expected to put off a hearing indefinitely but the employee's right to attend a hearing should not be dispensed with too hastily. Employers should always be wary of proceeding in an employee's absence without very good cause, as the right to put forward one's case at a disciplinary hearing is regarded by employment tribunals as the bedrock of a fair dismissal process.

Certainly employers should be very wary of proceeding to dismiss in an employee's absence and should only do so having warned the employee that this is a possibility if they do 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 they are not physically present at the meeting.

What if the failure to attend is because of ill health?

Often employers are faced with an employee unable to attend a disciplinary hearing by reason of ill health, commonly "stress" will be cited as the reason. Employees often think that by getting themselves signed off they can avoid disciplinary proceedings. The employer is then placed in a difficult position: on the one hand they need to ensure that the matter is dealt with speedily and fairly and on the other hand the employee must be given a genuine opportunity to attend the hearing.

Unless the employer feels that the problem will resolve itself in a short space of time it is good practice to consult an Occupational Health specialist 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 their job this does not necessarily mean they are unable to attend a meeting.

Occupational Health should be asked 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 their explanation in writing?
• Are there any adjustments to the disciplinary process which could be made to enable the employee to participate?

The employer could offer other alternatives such as a telephone hearing, a hearing at a neutral place or location near the employee's home address, or even by inviting the employee to submit written representations.

In the event that Occupational Health advise that it is not possible for the employee to attend a meeting, the employer can still consider proceeding with a hearing in their absence on the basis that it is not appropriate to have the matter hanging over the employee's head and that by concluding the process the employee will be assisted in recovering their health.

Obviously an employee would still be given the right to appeal the decision and a full hearing could then be held at that stage if requested. In circumstances where an employer has dismissed the employee in their absence, best advice dictates that a full re-hearing should be conducted on appeal so as to correct any procedural deficiencies in the initial decision.

Proceeding in the employee's absence

Should the employer wish to proceed in the employee's absence the hearing should still proceed and the disciplining officer should make a careful note of their deliberations and any questions asked of other witnesses or the investigating officer.

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 or malingering will the tribunal be minded to find in the employer's favour. Employers should therefore only proceed where there is clear evidence that the employee is unreasonably refusing to attend the hearing.

Delivering a notice of dismissal

Caution should also be exercised when delivering the notice of dismissal to an employee who has not been physically present at the disciplinary meeting.

In Gisda Cyf v Barratt [2010] ICR 1475, a case in which a summary dismissal was communicated by letter, the Supreme Court held that the effective date of termination was when the employee actually read the letter informing her of her summary dismissal. Accordingly, in order to ensure that there is a clear record of when the dismissal was communicated it is good practice to ensure that any notice of dismissal is sent recorded delivery.

Further options include hand delivery of correspondence and/or delivery by email with appropriate read receipts being requested. The employer will then have a very clear record of when the notice of dismissal was communicated to the employee so as to avoid subsequent arguments about the effective date of termination for the purposes of the three month employment tribunal time limit starting to run.

Comment

If an employee is denied the opportunity to put forward their case at a disciplinary hearing the risk is that an employment tribunal will take the view that any subsequent dismissal is unfair on procedural grounds.

If the employee's presence would have resulted in a different outcome there is a significant risk of a substantial award for ongoing loss based on the dismissal being substantively unfair as well.

Employers should therefore only take such action where all appropriate steps have been taken to secure the individual's attendance at the hearing or an appropriate alternative has been considered.

It is always prudent in such circumstances to offer a full re-hearing on appeal so as to correct any procedural failings 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.