William Hicks & Partners v Nadal,
Employment Appeal Tribunal, 16 August 2005
To be procedurally fair, a disciplinary process will almost always require an employee faced with serious allegations to be given the chance to put their side of the case across before a decision is reached. This still applies even if the employer believes the employee is attempting to evade a disciplinary hearing by saying they are too stressed to attend.
Miss Nadal was subject to disciplinary proceedings after a colleague made a written complaint about bullying behaviour. Following the complaint, Nadal was absent from work and sent in GP sicknotes citing stress/anxiety.
Over the following weeks, the employer corresponded with Nadal in an attempt to set up a disciplinary hearing. Initially, she indicated that she would be well enough to attend a hearing after a few weeks, but dates arranged for a hearing were followed by sicknotes from Nadal’s GP stating that she would be too ill to attend. As an alternative, the employer invited her to make written representations.
While this process was ongoing, Nadal and her employer continued to negotiate the terms of a compromise agreement, which related to a separate issue predating the complaint. The employer also received information that although Nadal was signed off with stress/anxiety, she had, in the intervening period, been offered a position with another employer, and was due to start there very shortly. The employer notified Nadal that it would only postpone the disciplinary hearing by one more day. It concluded that despite the GP’s sicknotes, she was well enough to attend.
Nadal requested another postponement, pointing out that she was due to see her GP the following day. The employer refused and the hearing went ahead in her absence. She was subsequently dismissed for conduct reasons.
The tribunal upheld Nadal’s unfair dismissal claim on the basis that the employer had not followed a fair procedure before reaching the decision to dismiss. The employer appealed.
Decision on appeal
The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision. For a dismissal to be procedurally fair, and in the interests of natural justice, the employee must be given a chance to state their case. This is particularly so where they face serious accusations and the GP has said they are unfit to attend – even if the employer receives information which causes it to doubt that the employee is genuinely too ill to attend.
The EAT said there were only likely to be two exceptions to the rule that the employee be given an opportunity to state their case where serious allegations have been made:
Where information is received from the police that an employee has stolen goods from their employer and the employee fails to protest their innocence or implement the grievance procedure
When an employee has been advised to say nothing until the trial in criminal proceedings, and also fails to give a statement to the employer, it may reach a decision without that statement.