![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201509.jpg)
Attending the hearing
[ch 7: pages 39-41]The Acas Code says both parties should make “every effort” to attend. Employees are often tempted not to go, but this is usually a mistake, especially if a tribunal claim is planned. The Acas Code (para 24) says that where an employee is persistently unable or unwilling to attend a disciplinary hearing without good cause, the employer can go ahead and make a decision based on the available evidence. By staying away, the employee loses the chance to put their own case and to draw the decision-maker’s attention to important facts. Here is a good example of some of the implications of staying away:
Ms Yeung, a residential care worker, was accused of abusing residents and was summoned to two disciplinary hearings. She decided not to attend either meeting, and the second meeting went ahead without her. A manager reviewed the evidence, including witness statements from co-workers, and decided she was guilty of gross misconduct. Yeung appealed and asked for permission to cross-examine her accusers at her appeal hearing. Her employer refused.
At the appeal hearing, Yeung raised new issues, which the senior manager hearing the appeal investigated before making his decision. His further investigations corroborated the initial accusations, and the new evidence he obtained suggested that her behaviour could have been worse than first thought.
Yeung was not given the chance to comment on the new evidence and instead the dismissal was confirmed without a further hearing. She claimed unfair dismissal. Ruling against her, the EAT said that dismissing without allowing her to comment on the new evidence did not make the dismissal unfair. Fairness must be decided, said the EAT, by looking at the whole process, including the original hearing and the appeal. Here, Yeung chose to stay away from the dismissal hearing, and only raised the new issues for the first time at appeal.
Had the new evidence found by the employer at the appeal stage made a real difference the decision to dismiss, not allowing Yeung to comment could have made the dismissal unsafe, said the EAT. But where, as here, the new evidence simply confirms that the original dismissal decision was correct, refusing the chance to comment on it will not make the dismissal unfair. The result could have been different if the employer had been thinking of reversing the dismissal, but changed its mind after hearing the new evidence.
Yeung v Capstone Care Limited [2013] UKEAT/0161/13/DA
In practice, a tribunal will have little sympathy for someone who gave up their chance to put their case at the internal hearing. Even if the claim is successful, any compensation will be cut by up to 25% because of the employee’s failure to follow the Acas Code (see Chapter 1).
Sometimes employees opt to resign part-way through the disciplinary process, perhaps because the outcome looks inevitable. An employee who resigns in these circumstances will find it extremely difficult to win a tribunal claim challenging the fairness of the dismissal process.
Where an employee resigns with notice during the disciplinary process, the process can continue, with or without their participation, until the end of the notice period. If the employer decides to summarily dismiss, the employment will end immediately, cutting short the notice period.
A decision to dismiss in an employee’s absence can be fair. Whether or not it is fair depends on the facts. Here are some factors to consider:
• is there a good reason for not attending, for example, illness? The employee should ask their GP for a letter to explain that they are too ill to attend the meeting (not just that they are unfit for work) and suggesting a timeframe in the reasonably near future when they are likely to be well enough. The letter could also refer to any medication and its effect on the ability to participate. Consider asking for occupational health or other specialist support;
• is this the first time the meeting has had to be re-scheduled? A tribunal would expect a reasonable employer to re-schedule at least once;
• is there a past history of good attendance?
• under the rules of natural justice, the member should be given the chance to put their case. This is fundamental to fairness (see the Nadal example below);
• is the member disabled, and if so, have all reasonable adjustments been made to enable them to attend (see below)?
Any postponement request should be clear and in writing. A telephone request should be backed up in writing. A note should be made of any call, with date, time and name of the person spoken to. Here is a good example:
Ms Nadal, a solicitor, was dismissed following allegations that included bullying and passing information to outside parties. A disciplinary hearing was arranged, but Nadal said she could not attend because she was suffering from stress. This was confirmed in a letter from her doctor. The firm invited her to make written submissions, but she said she would be well enough to attend a meeting in two weeks.
She was given a new date but she later sent a doctor’s note stating that she was still unfit for a meeting. At the second hearing, the firm held the meeting in her absence, refusing to accept she was too unwell to attend and saying that even if this was true, she could put her case in writing.
The EAT confirmed that the chance for employees to put their case at a hearing is an essential part of a reasonable investigation and that the offer of written submissions is not an acceptable substitute. It was wholly unreasonable of the firm to ignore the medical evidence about her health unless it had compelling evidence that she was deceiving her GP, or authoritative medical evidence contradicting her GP’s opinion. There was no need to rush this dismissal decision, and the dismissal was unfair.
William Hicks and Partners v Nadal EAT/0164/05