Can an employer invite an employee to attend a disciplinary hearing when he or she is on sick leave?
Where an employee who is subject to disciplinary proceedings is absent due to a short-term illness, the most appropriate course of action is likely to be for the employer to postpone the hearing until the employee is well enough to attend.
If the employee is on long-term sickness absence, the employer must balance the need to avoid unreasonable delay in the process with the importance of allowing the employee to put his or her case before it makes a decision.
The employer should take steps to determine whether or not the employee is well enough to attend a disciplinary hearing, even though he or she is not fit for work. If necessary, the employer should obtain medical evidence focused on the employee's ability to take part in a disciplinary hearing, and what, if any, reasonable adjustments it could make to facilitate his or her attendance. Reasonable adjustments could include holding the hearing in the employee's home or location of choice, allowing him or her to be accompanied by a family member or incorporating frequent breaks into the hearing.
If an employee is still unable to attend, the employer should consider putting the disciplinary process on hold until the employee is well enough. In William Hicks & Partners (a firm) v Nadal EAT/0164/05, the Employment Appeal Tribunal stated that it will be reasonable for a disciplinary hearing to go ahead in an employee's absence only in exceptional cases. If a disciplinary hearing takes place resulting in dismissal, and the employee was not in attendance, the employer could face claims for unfair dismissal and, if the employee is disabled, disability discrimination.