In this month”s Cripps Alert we look at two recent cases on disciplinary procedures. Both cases occurred before the new statutory disciplinary and dismissal procedures came into force in October 2004, but still provide useful guidance on these matters.
Can you proceed with a disciplinary hearing when the employee concerned is off sick?
The first case concerned the increasingly common problem of what to do when an employee facing disciplinary charges goes off sick. It is common in our experience at the first sign of disciplinary action being taken against an employee for that employee to leave work and head immediately to their GP”s surgery where they get a sick note for “stress and anxiety”. The employer is then left with a dilemma – should they proceed with the disciplinary hearing without the employee present or put the matter on hold until the employee returns to work? The recent case of William Hicks & Partners v Miss G Nadal is a caution to employers who are tempted to ignore medical opinion and proceed with the disciplinary hearing without the employee.
Miss Nadal, a personal injury solicitor, was suspended following allegations of misconduct and bullying made against her by a secretary in her team. During her suspension, Miss Nadal experienced stress and went to her GP. He signed her off sick and confirmed that, in his view, she would continue to suffer from stress for “the foreseeable future”. Despite receiving this letter, the firm decided to go ahead with the disciplinary hearing “in order not to exacerbate her stress.” Miss Nadal responded by saying that she would be unfit to attend the hearing on the date proposed, but anticipated that she would be fit within two weeks. The firm postponed the disciplinary hearing for about a week and sought to ascertain when Miss Nadal was likely to be fit to respond to questions at a disciplinary hearing and, in the alternative, if she was fit to make written submissions. Miss Nadal”s GP confirmed that Miss Nadal would not be fit to attend the hearing on the re-arranged date and neither was she fit to provide written representations.
Meanwhile, Miss Nadal was in negotiations with the firm over a compromise agreement and was also in the process of securing alternative employment.
The hearing was re-arranged once more but the firm refused Miss Nadal”s request for a further postponement. The firm wrote to her stating that they did not accept that she was not medically fit to attend the hearing or put her case in writing and further, they felt it was important to the staff who had made the complaints that the matter was dealt with quickly. The hearing went ahead and Miss Nadal was dismissed. She started work with a new firm the following week.
The Employment Appeal Tribunal (EAT) held that the employer”s decision to go ahead with the hearing without Miss Nadal being present was not within the range of reasonable responses and was therefore unfair. The EAT did not allow Miss Nadal”s employers to rely on the negotiations over the compromise agreement and Miss Nadal”s acceptance of a new job as sufficient to override the doctor”s opinion (that she was unfit to attend the disciplinary hearing) and the general rule that an employee should always be present at a disciplinary hearing.
The EAT in this case took care to stress that proceeding with a disciplinary hearing without the employee, particularly where dismissal may be the result should occur only in exceptional cases. They gave as an example the situation where an employer makes proper enquiries, including medical enquiries to establish that the employee is fit and able to attend the disciplinary hearing. If such enquiries suggest that the employee is fit to attend the hearing but the employee still refuses to attend without good reason, the EAT were of the view that the employer could go ahead without the employee. Such cases will be rare. This case is a warning to employers to make every effort to establish an employee”s state of health before deciding to proceed with a disciplinary hearing in their absence.