Picture the scene: an employee is invited to a disciplinary meeting but the very next day you receive a note from his GP signing him off for a month with stress. Sounds familiar? Another common predicament is that of the elusive companion or the trade union rep who is never available. Seen that one too? Or how about receiving a new or overlapping grievance as soon as a disciplinary process has commenced?
Should you press ahead with the disciplinary in these circumstances or suspend the meeting? What should you do if you suspect the employee taking advantage and is being purposely disruptive?
Whilst dealing with ‘disciplinary/dismissal-dodgers’ can be frustrating and time consuming employers are not powerless in the situations outlined above, especially when armed with our “top-tips”!
General
1. Assess each situation objectively: don’t jump to conclusions! Each situation should be assessed on the basis of:
- the nature of the alleged disciplinary offence (is it an urgent matter which must be dealt with immediately?);
- the particular employee (does he/she have a disability which may require you to postpone the meeting and take medical advice before proceeding?); and
- your particular business (a smaller business may need to deal with disciplinary matters more expeditiously than a larger business, for example).
2. Check your disciplinary policy and act in line with it. Failing to follow your own policy (without good reason) hands the employee easy ‘points’ against you.
3. Document your attempts to contact the employee if you think he is being purposely elusive. You should be able to clearly point to the times and dates on which attempt were made to contact him- this will be helpful evidence if you need to conduct the disciplinary meeting in the employee’s absence (see below).
Companion unavailability
4. All workers who are required to attend a disciplinary meeting have the right to be accompanied by a companion chosen by them: don’t press ahead with the disciplinary meeting the first time the employee’s chosen companion is unable to attend, as this may render any subsequent dismissal unfair.
5. You cannot reject the employee’s chosen companion unless you have valid, objective reasons for doing so. However, if the companion is unavailable after several attempts have been made to re-arrange to accommodate the companion this would give the employer a valid reason to ask the employee to choose another.
Absence
6. The first step to take when an employee goes off sick during a disciplinary process is to ask for a doctor’s certificate – if the employee is malingering this will put him off.
7. If you require a second opinion and your contracts allow for it, ask the employee to attend an appointment with a medical practitioner nominated by you. The medical practitioner should be asked to give a view on whether the employee is fit enough to attend work and, if not, whether he is fit enough to attend a disciplinary meeting.
8. You can invite the employee to attend a disciplinary meeting even when he is signed off sick by a doctor, especially if you offer alternative solutions to attending the meeting at his place of work e.g. the employee could nominate a companion to speak on his behalf; could make submissions in writing if he prefers or the meeting could be held at the employee’s home or a neutral venue.
9. If after seeking a medical opinion and after attempts have been made to allow the employee to have his case heard (see point 8 above) it would be legitimate for you to make a decision based on the evidence available in the employees absence, but this should generally be seen as a last resort.
New / overlapping grievances
10. The ACAS Code gives employers two options for dealing with overlapping grievance and disciplinary issues:
- the disciplinary process may be temporarily suspended in order to deal with the grievance; or
- the grievance and disciplinary may be run concurrently where they are related.
11. Record in writing the rationale for your decision at point 10 above.
In summary, handle these situations with care but do not be afraid to take decisive (well-documented) action if you suspect you are dealing with a disciplinary/-dismissal dodger!
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