Disciplinary procedures can often result in the employee being absent from work due to stress-related illness, putting the employer in a difficult position. Paul Archer, head of employment law at Lemon & Co Solicitors, discusses the options available in this situation.

Employment law has sometimes been described as the triumph of process over substance. The large majority of unfair dismissal claims at the employment tribunal are all about whether the employer has followed the required procedural formalities. Even if the employee in question clearly deserves to be dismissed, that dismissal will inevitably be unfair if the employer has not followed a fair procedure.

In relation to issues of poor performance and misconduct, the employer is expected to keep in mind the ACAS code of practice on disciplinary and dismissal procedures and must comply with the statutory disciplinary and dismissal procedure.

The employer is also expected to follow a fair disciplinary process even where the outcome of the disciplinary process is likely to be a written warning or final written warning rather than dismissal.

A stressful situation

Unfortunately, the reality is that formal disciplinary processes tend to be stressful for employees. Being given written notice of a formal disciplinary hearing and then having to attend a formal hearing is generally more stressful than the experience of having an informal one-to-one conversation with a line manager about how to best resolve workplace issues.

The practical experience of HR professionals and employment lawyers is that employees who are subject to formal disciplinary procedures (particularly those related to poor performance or misconduct) often go off sick with a stress-related illness prior to the disciplinary proceedings being completed.

An increasingly large proportion of a GP’s day-to-day case load is about dealing with patients suffering from stress-related illnesses and much of this stress is connected to events at work.

When an employee is off sick with stress while in the middle of a disciplinary process, the employer is put in a very difficult position. The position is particularly difficult in a scenario where the employee may face dismissal as a result of disciplinary action, but is benefiting from a contractual sick pay scheme.

This can lead to a situation where an employee has a financial incentive to stay off sick rather than attend any disciplinary hearing at which they may be dismissed. There is also a point about good management of employees. The employee who goes off sick with stress in the middle of a disciplinary process will find it hard to ever return to work because the first thing they will have to confront on their return is the disciplinary hearing itself.

The practical question is how employers should deal with a situation where an employee maintains that they are too sick to attend a disciplinary hearing. Many employers take the view that there is nothing that can be done and that they have to wait until the employee is well enough to return to work before taking any further action. However, there is a legal basis for employers taking a more robust approach to the situation.

A written invitation

The starting point is the statutory disciplinary and dismissal procedures and the rules established under Regulation 13 of the Dispute Resolution Regulations 2004. This regulation essentially provides that an employer only has to offer two opportunities for an employee to attend a disciplinary meeting.

These invitations must, of course, be in writing. If the employee is unable to attend either meeting as a result of illness, then the requirement to comply with the remainder of the statutory disciplinary and dismissal procedure no longer applies.

There is no reason why, under the statutory dismissal and disciplinary procedure, the employer cannot go ahead and hold the disciplinary hearing in the absence of the employee.

This is all very well but, aside from the statutory disciplinary and dismissal procedure, there is also a general requirement on employers to act reasonably in dismissing any employee.

In these circumstances, it is very helpful for an employer to consider all the practical alternatives to convening a normal disciplinary hearing. There are at least five alternatives that can be offered to the employee who is off sick with stress and these are as follows:

1. The employer can offer to hold the disciplinary hearing at the employee’s home.

2. The employer can offer to hold the disciplinary hearing at a neutral location.

3. The employer can offer to hold the disciplinary hearing by way of a telephone conference.

4. The employer can agree that a representative attends the disciplinary hearing and speaks on behalf of the employee.

5. The employer offers to deal with the disciplinary hearing in writing and gives the employee the opportunity to make any written representations.

Lemon & Co is often involved in advising employers on dealing with disciplinary processes in these difficult circumstances. We always advise the client to offer the employee these five alternatives if the employee suggests that they are not well enough to attend a normal disciplinary hearing at the employer’s premises.

Provided that an employer has offered the two required invitations under the statutory procedure and has offered all these practical alternatives, it will be very difficult for an employee to persuade an employment tribunal that it was unreasonable to continue with the disciplinary hearing in spite of their inability to attend.

Although each case has to be considered on its merits and individual legal advice should be sought in these kind of difficult cases, it is certainly very helpful to an employer to have considered all these practical alternatives.

Even if there is some limited risk involved in going ahead with a disciplinary hearing in the absence of the employee in person, it is often better to do so rather than let the matter become protracted or allow an employee who is facing dismissal to benefit from a long-term entitlement to contractual sick pay.

For further advice and assistance on dealing with disciplinary and dismissal matters, contact the employment law team at Lemon & Co Solicitors on 01793 527141.