How can I conduct a disciplinary procedure for an employee who is signed off sick?

When an employer carries out disciplinary procedures and hearings, employees should attend in order to state their case.

If an employee is unable to attend a hearing, the employer should make an effort to postpone the hearing to a new mutually convenient time for all parties. This includes the employee’s chosen companion as part of the employee’s right to be accompanied. A previous Wednesday Wonder written on employee’s rights to be accompanied can be found here.

Initial Sickness Absence

If an employee is absent or signed off sick when the disciplinary hearing is arranged, the employer should discuss with the employee the nature of the absence (e.g. COVID, or flu) to assess how long the absence may be for. An employer may pause the proceedings until the employee has recovered and returned to work, depending on the length of the absence. It is important that employers should always take into account each employee’s individual circumstances regarding sickness absence.

Persistent Sickness Absence

If the employee continues to be unable to attend the disciplinary hearing due to sickness or is absent for a significant period of time, there may be a number of reasons for this; such as the employee wanting more time to consider their position, or sickness due to stress and anxiety of the instigation of the disciplinary proceedings against them. The employer may need to discuss alternative arrangements for the hearing depending on the length of time that the employee has been signed off.

The employer will have conflicting priorities with attempting to conclude the disciplinary proceedings without unnecessary delay on one hand, and their duty of care to their employee on the other.  An employer must also consider whether an employee's ill-health contributed towards their misconduct or poor performance  

Medical Evidence

If the absence is longer than expected, it is likely to be appropriate (with the employee's consent) to obtain medical evidence. It may also be appropriate to seek guidance from occupational health on the fitness of the employee to attend the disciplinary hearing.

It is not necessarily the case that an employee who is unfit to work will also be unfit to attend a hearing, especially where the ongoing disciplinary proceedings are the apparent cause of their stress and anxiety. Therefore, seeking this occupational health report will be able to determine if the hearing can continue whilst the employee is signed off sick from work.

Alternative Meeting Arrangements

An option that employers can provide to employees, if they are worried about coming into the workplace or are unable to attend the workplace due to their illness, would be to offer them alternative meeting arrangements. This can help the employee to feel more comfortable meeting with the employer at a neutral venue and less intimidating than attending the workplace. This can include conducting the hearing over Zoom or any other video conference system if that would assist where the employee is too ill to meet the employer in person.

Reasonable Decision

If the employer has not been successful in arranging a suitable time and date for the hearing with the employee, the employee should be warned that if the persistent absence continues without good cause, as per paragraph 25 of the Acas Code the "employer should make a decision on the evidence available" and come to a reasonable decision themselves on how to proceed.

Employers should be wary of proceeding with the hearing in an employee’s absence, unless there is a compelling reason to do so, and should explore how they might be able to secure the employee's attendance. This option should only be considered as a last resort after exhausting the above avenues.

When making a decision on whether to proceed in the disciplinary process in the employee’s absence, the employer should consider:

• any rules their workplace has for dealing with failure to attend disciplinary meetings;
• how their workplace dealt with similar cases in the past;
• the seriousness of the disciplinary issue;
• the employee's disciplinary record, general work record, work experience, position and length of service; and
• medical opinion on whether the employee is fit to attend the meeting.

During the process, employers should invite the employee to submit written reports and representations to the employer so that they are still able to state their case.

All correspondence to attempt to engage the employee during this procedure should be documented to protect the employer from any unfair dismissal claims. This includes a detailed paper trail of correspondence between the employer and employee demonstrating the employer’s attempts to arrange and rearrange the hearing and to secure the employee’s attendance.

Once the employer has reached their decision, they should continue with their disciplinary procedure following the hearing and notify the employee in writing of their decision and the employee’s right of appeal

Employers should try to ensure fluidity within a disciplinary procedure, where an employee is signed off sick, as there may be various reasons why an employee is unable to attend a disciplinary hearing.  An employer should consider the circumstances of each employee before deciding on a suitable course of action.

If you have concerns about employees in your workplace, or questions about taking employees through a disciplinary process, contact our Employment Team by emailing employment@warnergoodman.co.uk or calling 023 8071 7717.