September 04, 2008

Dismissal hearing in employee's absence

Employers who are sceptical about an employee's GP signing them off sick just before a disciplinary hearing should obtain their own medical evidence before pressing ahead in the employee's absence. In William Hicks & Partners v Nadal, the employee's GP had written confirming that, due to stress, she was unfit to attend the disciplinary hearing or put her case in writing. The employer did not accept this as it was aware she had been conducting negotiations, including with a potential new employer.

The manager decided to proceed to dismiss her in her absence, even though she had been off sick for under two weeks and was due to see her doctor again the next day. The EAT ruled the dismissal unfair: it was unreasonable to ignore the GP's evidence, given that the manager was not medically qualified, had not seen the employee and had not put the conflicting evidence to the GP (or any other doctor). It would only have been reasonable to reject the GP's views if the employer had compelling evidence that the employee was pulling the wool over her GP’s eyes or authoritative contrary medical evidence about her fitness.

In contrast, an employer may be able to conduct disciplinary proceedings in the employee’s absence where their refusal to attend is unreasonable. In Balogun v Centre West London Buses, EAT, dismissal was fair where a union representative had advised the employee not to attend because he unreasonably considered there to be a breach of procedure.

The circumstances of these cases pre-date the statutory dismissal procedures. Employers may now be able to argue that it is "not practicable" to comply with the procedure within a reasonable period if the employee is likely to be unfit to attend a meeting for a long period. Medical evidence is likely to be key, but the employer's obligations under the statutory procedure will fall away if an employee fails to attend where it was reasonably practicable to do so. Employers will also need to consider reasonable adjustments to the procedure for disabled employees, such as holding the meeting away from the employer's offices or allowing a wider category of companion.

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