Bridgeman v Family Mosaic Housing Association ET/2201804/11
Date added: 26 January 2012
unfair dismissal | capability | disciplinary hearing in employee's absence
Employers should not be too hasty in holding a disciplinary hearing in an employee's absence, as this case demonstrates.
Practical tips
An employer that is considering going ahead with a disciplinary hearing in the employee's absence should be wary of using past delays in hearings taking place as a justification to go ahead with proceedings without the employee present.
It is perfectly plausible for the employee to have had a valid excuse on previous occasions (for example, to be on annual leave or sickness absence).
Where the employee will not, or cannot, attend a hearing, the employer should contemplate taking disciplinary action without the employee's input only as a last resort. |
Ms Bridgeman started employment with Family Mosaic Housing Association in September 2008 as a support officer, providing support to vulnerable adults. The tribunal found that, in 2008 and 2009, she had a weak manager who did not provide her with support or an objective assessment of her skills. As a consequence, it was unclear whether or not Ms Bridgeman's performance during that period was satisfactory.
In April 2010, there was a serious incident relating to one of Ms Bridgeman's clients. The association conducted an investigation, which identified shortcomings with her performance that had not come to light earlier because of the poor line management. A disciplinary hearing was arranged, but had to be postponed twice at Ms Bridgeman's request. She was eventually told that, if she did not attend, the disciplinary hearing would go ahead in her absence.
The hearing, which took place on 4 August 2010, resulted in Mr Black (the manager who had originally recruited Ms Bridgeman) issuing her with a final written warning. Ms Bridgeman was moved to a new team and placed on a "work plan" to allow her performance to be monitored. She was not dismissed because the poor earlier line management was seen as a mitigating factor.
From the early days of Ms Bridgeman's time on the work plan, there were problems, which were recorded by her new management team (her manager, Mr Phelan, and his superior, Ms Jones). In particular, Mr Phelan and Ms Jones criticised Ms Bridgeman for her inadequate risk assessments, an issue that could put the vulnerable adults in her care in danger.
In October 2010, Ms Bridgeman had another change of manager. Her new manager, Ms Findlay, was herself being performance managed and, although Ms Findlay reported that Ms Bridgeman's work was "satisfactory", Ms Jones did not agree. On 21 January 2011, Ms Jones prepared a report stating that Ms Bridgeman had "failed to demonstrate that she is capable of carrying out the basic functions of her role" and there was "the risk of a serious incident due to lack of competency".
Ms Bridgeman was off sick for part of January 2011 and eventually provided a sick note for a virus at some point after 21 January. On 31 January, while she was still off sick, the association invited Ms Bridgeman to a disciplinary hearing. In early February, Ms Bridgeman telephoned the association to say that she was trying to get another sick note for her continued absence.
On the day of the hearing, Ms Bridgeman rang to say that she was not well enough to attend. Mr Black decided to go ahead with the disciplinary hearing in Ms Bridgeman's absence. He considered that she was being uncooperative and he did not see a reason to postpone the hearing. Mr Black's view was that the outcome would not have been any different if she had attended. Ms Bridgeman obtained a sick note on 15 February. In a letter dated 16 February, Mr Black informed Ms Bridgeman that she was being dismissed, a decision that she appealed unsuccessfully. She claimed unfair dismissal.
The employment tribunal held that the association had genuine and reasonable grounds for dismissal. However, it went on to conclude that, in his haste to press on with recruiting a replacement, Mr Black had got the wrong balance between the needs of the association and Ms Bridgeman's rights. The decision to go ahead with the hearing on the first occasion on which Ms Bridgeman did not attend was too hasty.
The tribunal acknowledged that the Acas code of practice on disciplinary and grievance procedures (on the Acas website) says that employers do not have to wait indefinitely for an employee to attend a disciplinary hearing if he or she is suspected of malingering or has not kept in touch. However, the tribunal also stressed that the right to a disciplinary hearing is "the bedrock of a fair dismissal process" and it must not be dispensed with lightly. While Ms Bridgeman did have a history of delaying disciplinary hearings, the disciplinary process was right at the beginning and Mr Black did not have sufficient information to decide whether or not Ms Bridgeman was abusing the system. This was a substantial procedural failing, especially given the size of the employer.
The tribunal did decide that Ms Bridgeman would have been dismissed anyway and reduced her compensatory award to zero. This was because:
- she could not be allowed to continue to work with vulnerable adults, given her serious performance issues;
- she was reluctant to recognise that she had been underperforming and could not be redeployed;
- she was already on a final written warning; and
- several independent managers, none of whom bore the claimant a grudge, agreed that she could not be allowed to continue.
Ms Bridgeman's compensation was limited to a basic award.
Additional resources
- Although the employee in this case chose not to attend the disciplinary hearing of his own volition, a much more common scenario is where the employee's absence is due to sickness. XpertHR provides a full set of documents, with guidance, to help you deal with this difficult situation:
- Balogun and another v Centre West London Buses Ltd [2005] All ER (D) 225 (Nov) EAT In this appeal case, the Employment Appeal Tribunal held that it was reasonable for the employer to continue with a disciplinary hearing in the employees' absence.
- Perara v APCOA Parking UK Ltd ET/2200061/09 Employees often are unable to, or simply choose not to, attend disciplinary hearings. In this employment tribunal case, the employer was left with the difficult decision of whether or not to proceed in the employee’s absence.
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