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Dismissing an employee in his or her absence
A decision to dismiss taken in an employee’s absence can be fair (even if the employee is genuinely sick). Whether or not it is fair is likely to depend on a number of factors, in particular:
• Did the employee have a good reason for not attending, for example, illness? The employee should ask the GP for a letter to give the employer explaining:
◊ that the employee is too ill to attend the meeting (not just that s/he is unfit for work); and
◊ suggesting a timeframe in the reasonably near future when the employee is likely to be fit enough to attend.
• Was this the first time the meeting had to be re-scheduled? A tribunal would expect an employer to give an employee at least one chance to re-schedule.
• Was there evidence that the employee was likely to be fit for the meeting in the reasonably near future?
• Did the employee have a past history of good attendance?
• Did the employer carefully consider all the evidence in the employee’s absence?
If an employee has decided not to attend the hearing, having considered these risks, but nevertheless wants to put his or her case, s/he might wish to consider sending some detailed submissions in writing.
Any postponement request should be made clearly 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.
Ms Nadal, a solicitor, was dismissed following allegations that included bullying staff and passing information to outside parties. A disciplinary hearing was arranged, but Ms 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 opportunity 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 the dismissal decision, and the dismissal was unfair.
William Hicks and Partners v Nadal EAT/0164/05
See LRD booklet, Sick Pay and Sickness Absence, 2010, price £6.70 www.lrdpublications.org.uk/publications.php?pub=BK&iss=1535