Can it be fair to hold a disciplinary hearing in an employee's absence?

Most employers are hesitant to dismiss an employee in their absence or to decline to reschedule a disciplinary meeting in the face of a legitimate excuse. However this is exactly what happened in Nabili v The Norfolk Community Health and Care NHS Trust.

The facts

Dr Nabili worked as a consultant paediatrician for the NHS Trust.She was suspended over performance concerns, one stipulation of her suspension being that she did not practice for another NHS Trust. She admitted breaching this term, claiming she misunderstood the conditions of her suspension, and was requested to attend a disciplinary hearing.

Having already booked a flight to Iran to visit her ill mother, Dr Nabili requested the meeting be rescheduled. The panel initially agreed but that same day changed its mind and the meeting proceeded without her or her representative being present. She was dismissed and brought a claim for unfair dismissal.

The tribunal decision

The tribunal held that, given the investigation and its findings, Dr Nabili's presence would have made no difference to the decision and therefore the dismissal was fair.

The EAT decision

The EAT overturned the decision of the tribunal on the basis that it had failed to ask the right question. The tribunal ought to have considered not only whether the presence of Dr Nabili would have been "futile", but also whether at the time of the dismissal the NHS trust had acted reasonably in the circumstances in deciding that her attendance would not have affected the outcome.

The case will now be reconsidered by a new tribunal.

What does this mean for employers?

Regardless of what the tribunal decides on the facts of this case, it is important to remember that it will be rare that a disciplinary procedure can go ahead without an employee where the employee has a genuine reason for not attending. An employer needs to be able to explain why, taking into account all of the circumstances, it was reasonable for them to decide that it would be "futile" for the employee to attend. This is a high threshold.

Usually it will be good practice to:

• Reschedule a disciplinary hearing if an employee is genuinely unable to attend.
• If the employee seeks to postpone the rescheduled meeting, consider whether to postpone again or hold it in their absence. The number of times a meeting should be rescheduled will depend on the facts and what is reasonable in the circumstances.
• If the reason for non-attendance is ill-health, find out how long the absence is likely to last. Reschedule the meeting if the absence is short-term. If it is longer, get medical advice on when the employee might be fit to attend. If the employee claims they are unable to cope with a hearing, ask for medical input on what adjustments to the process might help.
• If ultimately it is not possible for an employee to attend a disciplinary hearing within a reasonable timescale, consider asking the employee to present written submissions or allowing a representative to attend on their behalf.
• Give a right of appeal, even if the employee was not at the disciplinary hearing. A comprehensive re-hearing could take place at the appeal stage if appropriate.

Users of Workbox, the employment team's online HR site,can access detailed information on managing the disciplinary process, along with a template policy and letters for each stage of the process in the Misconduct section.