It is very common for employees to take sickness absence once a disciplinary investigation has begun.
Reactionary sickness can be very disruptive to a disciplinary investigation and hearing but it is important that you (employers) manage the situation carefully to limit any suggestion that the company has acted unfairly.
Delaying the investigation can be harmful for all parties. For you it can cause undue problems within the workplace and for the employee it can cause ongoing stress, which can be detrimental to their mental health. It is therefore best practice that if an employee calls in sick during the investigation/disciplinary process the company should follow its internal policies and continue with the process as far as possible whilst the employee is absent to ensure all the facts are obtained. This will ensure witness statements are taken at the earliest opportunity in readiness to speak to the employee when the employee returns from their sickness absence. In addition, relevant documents should be collected and any other enquiries followed up.
Sickness absence should not cause the company too much difficulty if the absence is for a minor illness such as a cold. If the employee’s sickness absence is for a longer period or likely to be (for example suffering from stress) the employee’s manager (if not the investigating officer) should consider making a management referral to occupational health to determine whether or not the employee is fit to take part in the investigation or hearing. An employee can be fit to attend and respond to an allegation but still be unfit for work. However it is best to obtain medical evidence to support this approach. Please note the employee must be advised at this point that a referral is being made to occupational health. If consent is not already given in the contract to request a report then consent will need to be obtained.
Once the matter has been referred to occupational health and it is decided that the employee is fit to attend you should be accommodating and creative. You should allow at least one postponement, in exceptional circumstances two, of the hearing if the employee asks for such postponement. To not do so could be seen as unduly hasty and you could be seen as unreasonable. If the employee is disabled or likely to be disabled then postponement may be considered a reasonable adjustment therefore it is worth seeking advice to limit the risk.
If an employee is still unable to attend a hearing the company could:
- Allow them to bring a friend or family member rather than a colleague or trade union representative to the meeting.
- Arrange to meet in neutral place rather than in the workplace.
- You could also allow the hearing to be conducted over phone, in writing, or via Skype. If the employee hasn’t engaged after all these options have been explored then you are much more likely to be considered as acting reasonably. Please note, if the employee is disabled or likely to be considered disabled then it is always best to consider whether there are any adjustments that could be made (as mentioned above).
It should then be decided whether the investigation or hearing should continue.
When deciding whether the disciplinary process should continue without the employee, you should take the following factors into account:
- How long the employee has been off sick.
- Whether there is a likelihood that they will return to work in the future.
- Whether delaying or abandoning the disciplinary process would be harmful for your company.
- Whether any reasonable adjustment have been considered.
- Whether there is any medical evidence.
- How many postponements there have been to date.
If you decide to dismiss the employee, you must be able to show that you were reasonable and followed a fair process. Failure to do so could mean an employment tribunal may find that the dismissal was unfair. Therefore, it is important to keep records of the steps that you have taken to accommodate the employee.
Deciding whether to take action against a sickness absence can be incredibly difficult as there are many factors to consider, including whether the employee may be disabled. If you are unsure at any point during the disciplinary procedure you should seek legal advice as to whether you have followed a full and proper process when disciplining an absent employee.
The information contained in this article is for information purposes only and is not intended to constitute legal advice.