How to handle disciplinary hearings if the employee is off sick

The ACAS Code of Practice on disciplinary and grievance procedures says disciplinary processes should proceed ‘without delay’ – but what if the delay is caused by the employee being off sick?

Employees may genuinely become unwell due to the stress and anxiety caused by the disciplinary process itself, and sickness could be also entirely unrelated to the disciplinary process, but research suggests it can also be a tactical move to ‘buy time’. Worknest found that the leading cause of a protracted disciplinary process was an employee taking sick leave due to stress and anxiety, with almost a quarter (23%) of employers questioned citing this as the most common cause of delays.

Employers are stuck – they need to balance the requirement to proceed ‘without delay’ with the fact that (as the Employment Appeal Tribunal emphasised in William Hicks & Partners v Nadal) it’s only reasonable for a disciplinary hearing to go ahead in an employee’s absence in exceptional cases.

If a disciplinary hearing results in dismissal, and the employee wasn’t able to attend, the employer could face claims for unfair dismissal and, if the employee is disabled, disability discrimination.

It is a delicate balancing act.  

It’s worth remembering that the disciplinary process doesn’t have to be indefinitely paused in cases of sickness absence. You should make this clear to any employees under review – the matter can be put ‘on pause’ but it is not going away.

Practical tips for employers (if sickness is delaying a disciplinary process)

• Refer your employee to occupational health or other medical third party to confirm their fitness to attend meetings. In some cases, an employee may not be fit to work in their specific role but may be fit enough to attend a disciplinary meeting. A doctor may also advise that it would help the employee not to delay proceedings.
• If the business has a discretionary sick pay policy – payment of just the SSP (rather than full pay) might move things along. Be careful to make sure that the exercise of discretion is not vulnerable to a complaint of discrimination.
• Update your policies so that your position is very clear before you start disciplinary proceedings e.g. “employees facing disciplinary action will receive SSP only during any period of sick leave during the investigation or disciplinary process.”  Again ensure that those running the process are alert to the possibility of discrimination and how to avoid it.
• Consider what adjustments you can make to ensure the welfare of the employee and keep the process moving, such as off-site meetings, home visits, a wider choice of companions, the use of written representations or video conferencing. Get advice from a medical professional for adjustments, which will demonstrate objectivity to your actions.

Further reading

• ACAS Code of Practice on disciplinary and grievance procedures | Acas
• When to call the police in a disciplinary process – 7 steps