Taking disciplinary action against an employee in their absence is a risky move. This is because the employee is restricted from voicing their opinion and any decision made could be argued as bias.
In today’s technological world, communication can be via email, text message, social medial and instant messaging. The traditional use of recorded delivery in hard copy letters are usually used during a disciplinary process.
However, employers are often faced with the prospect that employees are unable or unwilling to attend a disciplinary hearing. This could be due to the employee avoiding facing the inevitable or a personal issue with the employee.
The ACAS Code of Practice states that if an employee fails to attend a first meeting, it is good practice to re-arrange for an alternative day to give the employee another chance to attend.
If the employee continuously attempts to postpone the meeting or fails to attend without a reason, the outcome of the meeting may have to be decided without the employee being present as an employer cannot be expected to keep putting a meeting off. Employers’ should not take this decision lightly as it could be the basis of an unfair dismissal claim.
The employer should exhaust all options before making a decision in the employees’ absence. Such things as allowing the employee to provide written evidence of what they wish to discuss at the meeting.
If the employee is unable to attend due to ill health, the most common health issue is stress. Sometimes, employees believe that if they get signed off with stress, they can then avoid the inevitable of a disciplinary meeting. At this point, the employer is placed in a difficult position; they have to ensure the matter is resolved within a reasonable time and, the employee must be given a fair chance to attend the meeting. A useful way of settling the situation is to consult an Occupational Health specialist to obtain a medical report.
To avoid the time delay in consulting an Occupational Health specialist, the employer could give options such as conducting the meeting over telephone, at a neutral place near the employee’s home address or allowing the employee to submit written evidence.
If it is concluded that the employee should not attend the meeting, the employer can then decide whether to make a decision in the absence of the employee. A reason may even be that it will assist the employee with their health.
If the correct procedure is followed in the sense that the employee is given their right to appeal, then the employer is protecting themselves. If the employee is not present, extensive written notes should be made. If the employee brings an employment claim, then the Employment Tribunal will want a thorough account as to why the hearing went ahead and the steps the employer took to attempt to secure the employee’s attendance.
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