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Ask the expert: Disciplinary for not attending a disciplinary?

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Can you discipline an employee for failing to attend a disciplinary hearing? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills and Reeve, offer legal advice.



The question:
How would deal with a situation where an employee has been investigated and then invited to a disciplinary (not for gross misconduct and not on suspension) but fails to attend on a couple of occasions and gives no reason for this? I’m guessing that you would postpone the original, invite to a new disciplinary hearing for failure to attend a disciplinary (would you have to do an investigation into this as it’s obvious they didn’t attend?) and advise that failure to attend would result in the hearing continuing in there absence, then if they fail to attend could we go for gross misconduct?

Does this look ok, also the main points for clarity are:

  • Is it ok to invite to disp hearing for failure to attend without holding investigatory hearing?

  • Is it ok to hold the first disp hearing for failing to attend the other hearing in there absence?

  • If they did turn up and gave no reasonable explanation what level of warning could you give them and would you then go on and arrange the original disp hearing? If we gave a final warning for not attending the the original disp hearings then held the original hearing and the outcome also merited a warning for a conduct issue could you then dismiss them for misconduct taking into account they would be on a final warning for failure to attend previous hearing (also a conduct issue)?

  • Legal advice:

    Esther Smith, partner, Thomas Eggar

    The situation is a little long winded but not that uncommon! The normal course of events in this case where an employee fails to attend a disciplinary without explanation, or in some cases without a reasonable explanation, is to reschedule the original hearing, for the original incident, and tell the employee that if they fail again to attend without reasonable explanation, then the hearing will be held in their absence and a decision made without the employer having the benefit of their input.

    Generally speaking it is quite rare for an employer to discipline for the act of failing to attend a disciplinary, as usually this occurs where the employee has gone AWOL, rather than in the situation where an employee is still working and carrying out their duties. However, there is nothing wrong in principle in disciplining for the failure to attend on the basis that the employer’s request that they attend is a reasonable management instruction, on the assumption that the initial disciplinary issues are valid. If you wanted to do this, you would need to inform the employee, when rescheduling the original disciplinary, that their refusal is regarded as a failure to carry out a reasonable instruction which is in itself a disciplinary matter, and they will be invited to a disciplinary to address this issue once the original disciplinary is dealt with.

    If you did disciplinary for this failure, the level of sanction would probably depend on what level of warning they were already on but on its own I think you would struggle to justify any more than a verbal warning.

    On the investigation point, there is no legal requirement to hold an investigatory meeting before a disciplinary, the only statutory obligation is to hold the disciplinary hearing, and therefore you can use the disciplinary as the investigation in appropriate circumstances, so long as all information is collated and considered before a decision is made.

    As mentioned it would be quite rare for an employer to pursue this and I would advise that you exercise caution, particularly where the employee may try to assert that the original disciplinary has been staged by the employer to get rid of them or something along these lines! I hope this addresses all of your points.

    Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar

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    Martin Brewer, partner and employment law specialist, Mills and Reeve

    Alan, the reasonable way to deal with this (assuming that as a minimum you follow the statutory disciplinary procedure) is to go ahead with the original hearing in the employee’s absence. Procedurally you should:

  • write to the employee expressing concern or disappointment that they didn’t turn up

  • tell them the new date

  • set out in detail the allegations

  • invite them to attend

  • send them all of the evidence you intend to rely on

  • tell them they can be represented

  • tell them that if they don’t want to attend they can send in written representations that will be taken into account
  • You should go ahead with the hearing unless there are truly exceptional circumstances.

    I don’t think that including failing to attend the original hearing adds much to the allegations, and even if you did can you meaningfully deal with it? I suppose you could add as one of the allegations ‘failure to attend without any explanation’ in which case no investigation is needed since that is a matter of fact. If you do add this as an allegation then it may prompt the employee to explain his actions to date. Although, as I have said, I doubt this adds much to the case and may just muddy the waters.

    Write to the employee with the outcome and advise them of their right to appeal.

    Martin can be contacted at: [email protected]

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