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Can I hold a disciplinary hearing in an employee’s absence?

We often get asked whether a disciplinary can proceed in an employee’s absence. If an employee has given a genuine reason for not attending then it is unlikely that it would be considered reasonable to hold it in their absence.

Nabili v The Norfolk Community Health and Care NHS Trust

An ET decision has recently been overturned by the EAT and will be reheard by a new tribunal.  Dr Nabili was a Consultant Paediatrician working for the NHS Trust.  She was suspended, but breached a term of her suspension by working for another NHS trust.  She was invited to a disciplinary hearing but requested a postponement as she would be away.  The meeting proceeded without her or her representative being present.  She was dismissed. 

The original Tribunal found that given the investigation and its findings, Dr Nabili’s presence would have made no difference to the outcome and therefore the dismissal was fair.  However, the Appeal Tribunal, found that the Tribunal had asked the wrong question.  As well as considering whether her presence would have been futile, they should have considered whether it was reasonable for the NHS to decide that her attendance would not affect the outcome. 

 

We recommend:

  • Rescheduling the hearing if the employee has given a valid reason for not being able to attend.
  • The number of times a hearing can be rescheduled before it is held in an employee’s absence will depend on the circumstances.
  • If the reason is ill-health, find out how long this is likely to last.  If it is short-term, reschedule for a time when the employee is likely to have recovered.  If it is long term, seek medical advice to help decide when the employee might be fit to attend or whether an adjustment could be made that would help them attend. 
  • If they cannot attend within a reasonable timescale, ask for written submissions or consider allowing a representative to attend on their behalf. 
  • Always allow an appeal. 

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