Employment

Ok – this is a subject that will be all too familiar to HR teams. It’s up there alongside the most troublesome responses to an invite to a disciplinary hearing. Signed off sick.

Let’s be fair – the prospect of getting sacked might make it difficult to function normally. An extreme stress reaction is not unusual, particularly if there is a long build-up. But sometimes the absence is an avoidance tactic.

So what can you do? Here are the best bits of advice on the subject. No magic wand, but some things to think about.

  • Firstly, watch your tone in letters, emails and calls. It is easy for irritation to spill over onto the page. There is nothing to stop you explaining your position, but antagonistic language does not play well in front of a tribunal.
  • Ask that the illness is certified. It won’t make much difference in a serious case, but might be a deterrent to some. If you can’t do that under your policy, think about changing it (although check to make sure you have the legal scope to do that).
  • Ask an OH adviser to carry out a fitness to attend disciplinary assessment. Most will now provide this service and many are prepared to say that avoiding the issue is not a solution for the individual.
  • Set a timetable for re-scheduling the meeting – the longer you leave it the more likely it is that management of the case will drift.
  • Make at least one attempt to reschedule. How many attempts you might have to make depends on the facts (I know you hate that phrase..) and making a ‘reasoned’ decision. Test your approach by thinking about how you would explain it to a tribunal judge – how did you weigh up the factors in making a decision to go ahead? Does it sound balanced?
  • Offer additional support if the individual claims to be unable to cope with the hearing. Consider flexing strict rules on who can attend with them.
  • If they persist in refusal, tell them that you intend to go ahead in their absence and that they can send someone in their place or make written representations.
  • If they are answering conduct allegations, make sure that they have all of the evidence you are relying on up front – it’s a standard rule but sometimes forgotten when employees refuse to turn up for hearings.

And here are some things that you will probably want to take some more advice on:

  • If it is a gross misconduct case and the evidence is very strong, do you have a ‘suspend without pay’ option? To be introduced and used very carefully, but becoming more common and may be helpful if the evidence is black and white.
  • Have you decided whether employees who are suspended but off sick are on sick pay or ordinary pay – and have you made that clear?
  • Do you want to have a policy that restricts sick pay in the event that someone refuses to come to a disciplinary hearing? – this approach gets mixed reviews amongst HR practitioners but if you apply it on a reasoned and balanced basis (a theme I will return to in future blogs) – particularly where there is good evidence of serious misconduct such as theft it may be useful.
  • Are you clear that the illness is reactive and that you are not dealing with a disability? – if you are in any doubt, take some legal and medical advice. The potential for a disability discrimination claim may not actually stop you from having a hearing, but it might mean that you should build in one or two additional safeguards or adjustments.

So there we go. One blog down and plenty more where that came from.

 

Please note: the content of this blog is not to be treated as legal advice in an individual case and is intended as guidance only.

Joan Cradden

Partner at Brodies LLP
Joan is a partner at Brodies and is leading and managing the firm's employment team. She is an experienced litigator and has specialist expertise in TUPE, International and European employment law, discrimination, contracts, policy drafting and industrial relations.
Joan Cradden