It’s a really common scenario- you need to conduct a disciplinary hearing with an employee, and either they get signed off sick for a period of time, or they ring in sick on the day of the hearing and don’t attend.
You want to get the issue dealt with, but how can you do that if the employee won’t engage in the process? Here are the best steps to follow to avoid a disciplinary situation being strung out for months.
It’s frustrating but of course you need the disciplinary hearing to be fair, and any warning or other sanction given to ‘stand up’ if the process is later scrutinised, so to be reasonable, you should attempt to reschedule at least once.
2. Seek Occupational Health advice
This is more if someone is signed off for a longer period, rather than ringing in with a tummy bug on the day. Ultimately someone could easily be unfit for work, but perfectly fit to attend a hearing, either in person or via video conference. Seeking OH advice on this specific point is a great idea – ask the OH practitioner the specific question to find out whether the individual is fit to participate in meetings about their employment.
3. Make adjustments
If someone says they are not fit to attend a disciplinary hearing scheduled to take place in person at the workplace, offer to change it to a video hearing instead. Or ask whether there are other adjustments that would enable them to attend, particularly if their illness is related to a disability.
4. Offer written representations
If someone won’t attend in person or via video hearing, you could offer them the chance to make written representations instead, setting out their defence, and effectively conduct the process in writing.
5. Make the decision in their absence
Managers often want to jump straight to this one, for understandable reasons. It’s not that you can’t ever do this – the hearing manager would review all the evidence provided, including anything the employee has chosen to submit, and would make a decision about a sanction.
It can be a fair process if done that way, but only if every alternative has been explored as above, and the employee has been given fair chance to attend, including rescheduling and exploring adjustments first. Jumping through those hoops is essential if you want the decision to be a robust one (and of course a decision taken in someone’s absence is more likely to be challenged).
Ultimately, an employer is allowed to progress an issue. You are not expected to wait indefinitely or drop a potentially serious disciplinary concern because an employee is either reluctant or unable to attend in the normal way.
But progressing an issue when there are potentially ill health concerns involved has to be done carefully. It’s important to make sure you have explored all of the steps above, and have documented that, and can appear objectively ultra reasonable, before you do anything like issuing a warning in someone’s absence.
Don’t be tempted to let frustration at perceived deliberate avoidance goad you into rushing it. It’s understandable, but it will do you no favours. And in fact if the employee is attempting to play a bit of a game (let’s be realistic, we know it happens), your ultra-reasonableness will highlight that much more clearly than if you are not whiter-than-white!
If you’d like some guidance handling a disciplinary issue with someone who is off sick, do get in touch.