Can we proceed in absence if an employee does not attend a disciplinary hearing?

An employee may choose not to attend a scheduled disciplinary hearing. This is generally for one of two reasons. The first reason is that the employee does not want to face up to the matter in question. As such, they may simply refuse to attend any meeting or they may go off work and claim that they are sick with stress or something similar. This does not of course mean that every employee who is off work sick with stress is not suffering from the same.

The second reason is because of illness. What happens next will very much depend upon the type of illness and how long the employee is likely to be off work sick.

How do we invite the employee to a meeting?
As with any disciplinary hearing, it is important to write to the employee and advise them of what the issue is that you wish to discuss with them. They should also be advised as to whether the likely sanction will include dismissal.

The first letter should advise the employee that if they fail to attend the disciplinary hearing it will be adjourned on the first occasion. If they fail to attend a second hearing then the matter may proceed in their absence on the evidence available to the employer.

What if the employee fails to attend?
If we assume that the employee does not attend then the employer needs to consider the reason for non-attendance. If the employee is at work and simply will not follow a request to attend a meeting then he or she needs to be reminded that it is a reasonable request and the failure to follow such a request may lead to further disciplinary action being taken.

In the case of a failure to attend because of sickness the employer will need to consider the illness complained of and how this may impact upon the disciplinary process. Key features will include:

• the type of illness and whether this affects the employee's ability to participate in a meeting.
• the likely duration of the illness and the impact upon the business of continued absence.
• whether any reasonable adjustments can be made to the disciplinary process to allow matters to proceed.

Should we obtain medical evidence?

It is always advisable to obtain medical evidence in all but the most obvious of cases. This should include questions such as how long the illness complained of is likely to last, whether the person can attend a meeting and what adjustments can be made to allow a meeting to take place.

It is important to note that an employee does not have to consent to such a report being prepared and they can withhold their consent even after they have seen any report. If this happens then the employee should be reminded that the employer will proceed on the evidence available.

What if the employee fails to attend a second meeting?

If this happens then the employer may choose to proceed on the evidence available at that time. They may wish to allow the employee to make written representations or make other adjustments to the process. Whether or not the employer should proceed in absence will depend upon a number of factors including:

• the employee, their work record, disciplinary record, position and length of service
• the seriousness of the allegation and whether dismissal is an option
• any medical opinion and how long the absence will last for
• how cases such as this have been considered in the past
• what the disciplinary procedures say about proceeding in absence
• whether the employer genuinely believes that the employee is trying to avoid or delay the process    

Matters such as this really rely upon a little common sense. If for example there is a second meeting on the Tuesday and the employee has flu but will be back on the Friday then it makes no sense to proceed in absence. However, if the employee has a broken wrist and fails to attend a number of meetings, the employer may feel that the broken wrist does not impact upon the employee's ability to take part in a meeting and that the matter should proceed.

Summary of key points

• Write and advise of the issue of proceeding in absence
• Always consider obtaining medical evidence
• Consider the matter fairly and ask how an outsider may view the decision to proceed - was it reasonable in the circumstances.

This blog represent our thoughts on disciplinary matters being held in the absence of an employee. It is not meant to be taken as specific legal advice nor should it be applied to any particular set of facts. If in doubt always seek legal advice in such matters.

We have considerable experience in advising employers on disciplinary matters and can be contacted on 01582 439795.

For more information see our website at www.chilternsolicitors.co.uk or follow us on twitter @chilternsols