William Hicks & Partners v Nadal
A warning against holding disciplinary hearings in an employee’s absence – written representations will not be sufficient
Miss Nadal was suspended from work following various accusations made against her. Following her suspension, the firm received a letter dated 24 October from Nadal’s GP saying that she “was suffering from stress and not fit to attend any hearing in the foreseeable future”.
On 27 October the firm wrote to Nadal requiring her attendance at a disciplinary hearing on 31 October and inviting her to make written representations if she could not attend. Nadal wrote back saying that she was unfit to attend, but thought she would be fit to do so in two weeks.
The firm then wrote to Nadal’s GP, with her authority, to ask him to comment on whether she would be able to understand and respond to questions and, if she was unfit to attend, whether she would be able to respond in writing.
The hearing was rescheduled for 5 November, and later changed to 6 November. The firm received a further letter from Nadal’s GP on 4 November stating that the main symptoms of anxiety were caused by the disciplinary action and that once this stress was over she would be able to perform her normal duties.
Nadal’s solicitor also wrote to the firm asking for a postponement of the hearing, pointing out that she would see her GP again on 7 November and a prognosis should then be available. The firm wrote back saying that it did not accept that she was medically unfit, that in any case she could put her case in writing and that it was important that the matter was sorted out quickly for the sake of the staff who had made the complaints.
Nadal did not attend the hearing, which went ahead in her absence. She was subsequently dismissed on 11 November.
Nadal claimed unfair dismissal.
The tribunal said there was a procedural unfairness in relation to the disciplinary procedure that the firm had adopted in deciding that Nadal was fit to attend a disciplinary hearing, going ahead with that hearing in her absence and subsequently dismissing her – especially since the firm had gone to the trouble of getting the medical evidence in the first place.
The Employment Appeal Tribunal (EAT) upheld the tribunal’s finding that it had been outside the band of reasonable responses for the firm to decide that the employee was fit, contrary to medical evidence, to attend the hearing and to then hold the hearing in her absence. The EAT agreed with counsel for the firm that there were extremely limited circumstances in which it would be reasonable to dismiss for misconduct without a hearing.
Under the statutory disciplinary and dismissal procedure (SDDP) an employer is obliged to invite the employee to a meeting at a “reasonable time”. If you know the employee is unfit to attend you should look to rearrange the meeting rather than proceed on the basis of written representations.
If an employee is likely to be unfit for a long time it may not be practicable for either party to comply with the SDDP within a reasonable period. In that situation, you may be able to treat the SDDP as having been completed, but you should make that decision on the basis of a medical prognosis.
What you should do
- Adhere to the principle that an employee should not be dismissed without a hearing
- Monitor the sickness absence in line with your policy on sick pay. A warning that sick pay at full salary is about to expire might help prompt a speedy recovery
- Do not bully the employee to attend a disciplinary hearing, especially if the absence is stress-related in the first place. It may also pave the way for a constructive dismissal and/or disability discrimination claim
- Always check medical evidence about the employee to ensure they are fit to attend a hearing. If in doubt seek further medical opinion.
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