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Disciplinary Procedures

“Too stressed” to attend a disciplinary hearing

An employee has failed to show up at a disciplinary hearing.  They claim this is because the proceedings are “stressing them out”. As this gem of an excuse could be wheeled out indefinitely, what could you do instead?

Playing the “stress” card

Over the years, employees have given their long-suffering employers thousands of reasons why they’ve not turned up to disciplinary hearings. One of the most common excuses is “stress” which has been exacerbated by the proceedings; some even get themselves signed off because of it.

Nightmare. This old chestnut could be used as a means to delay the proceedings for months. So what, if anything, can you do about it?

Advice in the ACAS Code

The ACAS Code of Practice on Disciplinary and Grievance Procedures outlines the framework that you should follow when dealing with disciplinary matters. Yet it doesn’t explain how you should handle no-show employees. Instead, paragraph 24 states that “where an employee is persistently unable, or unwilling, to attend a disciplinary hearing without good cause, the employer should make a decision on the evidence available them”.

Tip. “Persistent” isn’t defined in the Code – so it’s up to you how many no-shows you will allow before making a decision in the employee’s absence. Good practice suggests that two failures count as persistent, unless there’s “good cause” for it.

Seek a medical opinion

The employee’s health is a potentially good cause. So in this situation you should first obtain medical advice on whether or not they’re fit enough to attend another hearing. Naturally, you will need the employee’s consent before you can approach their GP.

Consider all other options

You must pose the right questions to the GP and, even if you think that the employee is lying, enquire how you might reduce the potential for stress.  By showing that you’re prepared to be accommodating, you can claim the upper-hand.

Tip 1. Don’t leave alternatives up to the employee or their GP – they may say that nothing can be done to reduce stress. Instead, suggest several options in your letter, for example (1) holding the hearing on neutral ground or by telephone; (2) permitting the employee to submit a detailed written statement explaining their case, answering the allegations and setting out any relevant mitigating factors; or (3) allowing the employee to send a representative to act on their behalf.

Tip 2. When you offer a number of sensible options – like those detailed above – it’s difficult for the GP (or the employee) to argue that they’re all unsuitable.  At least one should be a solution which will allow the hearing to proceed.

Refusal to co-operate

If they are rejected, or the employee simply refuses to co-operate (or give consent for you to contact their GP), you can proceed with a further disciplinary hearing in their absence.  If this is the case, advise them when and where it will be held – they may still turn up.  If not, ensure that detailed notes are taken and sent to the employee for comment before a decision is made.  Finally, don’t forget to always offer the right of appeal.

Suggest concluding the disciplinary hearing via less stressful means, e.g. by telephone; this may solve the problem.  But if the employee is persistently unwilling to attend, the ACAS Code says that you can make a decision on the evidence available.  However, at least two no-shows are needed to go down this route.

Tips & Advice Personnel 26.05.2011