It is a frustration often encountered by employers looking to advance disciplinary procedures: the employee concerned is considered to be delaying the process by going off sick and requesting that hearings are postponed. The ACAS Code of Practice advises employers that they are not required to wait indefinitely for malingering employees, but as the Employment Tribunal has recently held in Bridgeman v Family Mosaic Housing Association this does not give employers carte blanche to proceed with disciplinary procedures under any circumstances.
In this case, Ms Bridgeman was subject to two disciplinary procedures over her time at the employer company. The first disciplinary hearing was postponed twice at Ms Bridgeman's request and it finally took place after the employer told her that it would go ahead in her absence if she did not attend. As a result of that hearing Ms Bridgeman was issued with a final written warning and a "work plan" to allow her performance to be monitored. When she failed to meet the requirements of the work plan, a second disciplinary procedure ensued. Ms Bridgeman was invited to a disciplinary hearing whilst she was off sick, and on the day of the hearing she rang to say she was not well enough to attend. This time, the employer proceeded in her absence, and decided to dismiss her. She unsuccessfully appealed the decision and then claimed unfair dismissal.
The Tribunal found that her dismissal had been unfair. In explaining its decision, it pointed out that although it is possible to proceed with a disciplinary hearing in an employee's absence, such a decision should not be taken lightly as the hearing represents the cornerstone of a fair dismissal process. The fact that Ms Bridgeman had delayed the previous disciplinary did not mean that the employer was entitled to automatically hold it in her absence in this instance.
There was not enough evidence to suggest that she was abusing the system, and so the employer's decision to proceed was too hasty and constituted a significant procedural failure. However, the Tribunal did also conclude that Ms Bridgeman would have been dismissed in any event, given her serious performance issues and the fact that she was already on a final written warning. Her compensatory award was therefore reduced to zero and she only received a basic award.
Best practice
Employers should not use past delays in hearings, for which there may have been perfectly valid reasons, in order to justify proceeding with a new disciplinary procedure in an employee's absence. Given the significance of the hearing to the entire disciplinary process, employers should only consider proceeding in an employee's absence as a last resort.
For more information, please contact Michael Halsey 020 7665 0842.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
