Sickness during a disciplinary process – everything you need to know

Where do you stand if an employee is signed off sick while under investigation for disciplinary incidents? David Wright explains your options.

I'm often asked for advice by salon owners who discover a serious disciplinary issue with an employee. The employee walks out then immediately reports that they are sick. This is often followed by a medical certificate from their GP saying they’re unfit for work due to stress.

The employer sees this as a flagrant attempt to avoid the inevitable dismissal, but jumping the gun can have costly consequences. Dismissing an employee in their absence should only be done as a last resort. Obviously, an employee can’t postpone a disciplinary hearing forever, but to protect themselves legally employers should follow a set process.

Consider the circumstances

You need to consider the circumstances; for example, do you believe the employee’s actions constitute gross misconduct, or something lesser? Is the employee a manager or a junior employee – in other words, what are the consequences of their absence?

I would suggest waiting to see if they return to work within a couple of weeks. There’s nothing stopping you from contacting them to highlight the outstanding disciplinary issue and ask if they’re happy to either come into work for the hearing, have a home visit or even respond in writing. Remember, their GP has indicated they are unfit for work but they may be perfectly able to meet their employer for a hearing.

The employee will usually advise quickly if they’re not. It’s usually possible to complete the “fact finding” part of the disciplinary without their input. Then you can send them your findings and give them a period of time to respond before deciding if a hearing is required.

What to do if it's a serious incident

If you have completed your investigation and no longer view it as gross misconduct tell them that although there’s a disciplinary hearing they won’t be dismissed – it may even prompt them to return to work.

If it’s a serious issue and there’s a need for a hearing, in most cases you would suspend the employee on full pay, so I would typically advise the absent employee that you would have suspended them had they been at work but as they aren’t attending there is no need to.

Arrange the hearing as normal by writing to the employee with the time and date, the allegations and the employee’s right to be accompanied.

If they don’t attend, you can rearrange the hearing. Make contact with the employee, and encourage them to attend – as a reasonable employer you are now giving them a second chance.

You could obtain consent to contact their GP for a view on when they will be fit to attend a hearing or if attending a hearing now might damage their health.

What to do if there is a continued failure to attend

If you have accepted one and maybe even two cancellations of a hearing, the final resort would be to write to the employee with the following:

• list the number of postponements

• outline the seriousness of the allegations and necessity for a hearing

• resend the original letter with a third proposed date

• emphasise the importance of fairness and having the hearing while the facts are fresh in everyone’s mind

• give as many options as possible. For example: attending the next hearing date, agreeing it can take place at a different venue, agreeing it can be done via conference call or video link, providing a written statement answering the allegations or sending a representative.

Be clear that you would like to be contacted regarding the options in advance; but that if there isn’t contact, and they don’t attend, the disciplinary hearing will go ahead in their absence. It would still be important to ensure the evidence and any possible mitigation was considered before the employer made the final decision – just as if they were there.

You would then write and advise the employee of the decision, how you reached it and their right of appeal. If the decision isn’t dismissal then of course they may return to work in due course.

David Wright is a consultant in all aspects of employment practice and law. He is the main employment law consultant for Habia and provides a personalised support service for UK salons. You can also read Wright's advice on what to do if staff refuse to sign their contract of employment.