As an employer, it is in your best interests to conduct all disciplinary procedures in a manner which promotes fairness in order to mitigate any potential legal claims being brought against you . As such, it is preferable that the employee attends any disciplinary hearings so that they may best state their case. Consequently, unless there is a compelling reason to do so, employers should be advised to avoid proceeding with a disciplinary hearing without the employee being in attendance.

In the event that an employee goes off on sick leave, the employer should reach out to them to discuss the nature of their absence and assess how long they are likely to be absent. If practicable to do so, the employer should pause proceedings until the employee is fit to attend. Of course, this will depend on the specific circumstances at hand (e.g. the nature of employee's illness, history of absenteeism and any other relevant circumstances), but, in any event, an employer will be expected to rearrange their initial disciplinary meeting at least once to try and accommodate the employee.

If the absence persists for a significant period, the employer should explore alternative arrangements for the hearing. After all, it is your duty as the employer to balance both the conduct of proceedings without any unnecessary delay and their duty of care to the employee. Therefore, the employer may wish to propose arrangements such as a video call to hold the meeting, or meeting on neutral grounds if the workplace itself may cause difficulty for the employee.

Should the absence continue further, the employer should consider obtaining medical evidence, subject to the employee’s consent. Occupational health may assess the employee’s fitness to attend and whether disciplinary can and should proceed while the employee is absent from work. Employers should consider their internal rules for disciplinary actions, as well as how any similar cases have been dealt with in the past. Where it is determined that the employee is unfit to physically attend a disciplinary hearing, but that proceedings should proceed, the employer may invite their employee to make written submissions setting out their case.

Where an employer has already exhausted the steps set out above but the employee remains off on sick leave, the employer may issue a written warning to the employee noting that if the absence continues without good cause, they will be required to make a decision on the evidence available to them in employee’s absence. In any event, employers should seek appropriate legal advice when facing difficulties regarding an employee’s sickness and its impact on disciplinary proceedings.

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HR Toolkit | eLearning Course

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