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May 2011 Newsletter

May 29th, 2011
 Disciplinary Procedures: The employee who goes off sick
A problem confronting many employers who commence a disciplinary procedure is the employee who is signed off work by their GP when a disciplinary procedure has been started.

This raises a number of problems and issues

 Do I need to continue to pay them full pay?

An employee who is suspended is normally suspended on full pay. In principle, when an employee is suspended it is because the employer chooses not to provide them with work. Where the employee remains willing and able to work they are entitled to full pay. However, if their GP certifies them as unfit for work they are no longer able to work and in principle, can be treated as off work sick rather than still suspended on full pay. This can be clarified in the employment contract or disciplinary procedure.

 Can I still insist they attend a disciplinary hearing?

Being unable to work and unable to attend a disciplinary hearing are 2 different things. If the employee is certified as unable to work, the employer can investigate further.

The employer can ask the employee to get a letter from their GP to say they are unable to attend a disciplinary hearing. However, it may be that the disciplinary hearing is what is causing the employee stress, so the result may be the same.

Do I have to rely on the employee’s GP?

No, as an alternative to contacting the GP the employer is entitled to require the employee to see an occupational health doctor chosen by the employer to determine if the employee is well enough to attend for the disciplinary hearing. If the employer has already made arrangements with an occupational health service, this can be done at short notice. If the occupational health report certifies the employee as fit to attend a disciplinary hearing the employer can insist it goes ahead.

What if the employee doesn’t turn up?

If the employee fails to attend the disciplinary, the employer can give the employee the option of either attending the appeal hearing, sending a representative or sending in something in wrting, If the employer needs to replace the employee that is a good reason for not delaying the appeal hearing while waiting for the employee to be well enough to attend.

 What if the occupational health doctor (or GP) says the employee is not well enough to attend a disciplinary hearing?

The employer will then need to weigh up the situation. If the employee’s work can be covered without any problem, and there is no urgency to conclude the disciplinary process, they may wish to wait until either the employee is well enough to return, or until the employer concludes that the length of sickness absence is such that the employee should be dismissed for long term sickness and a “capability procedure” can then be instigated.

 However, while an employee is off sick they are still entitled to accrue holiday pay, so for every month they are off sick they will accrue the right to 2.3 days paid holiday. Also if an employee is dismissed for capability they are entitled to payment in lieu of notice, whereas an employee dismissed for gross misconduct is not entitled to be paid notice.

 The employer is having to pay and administer either company sick pay or Statutory Sick Pay during the employee’s absence.

The only advantages to the employer waiting until the employee has been off sick long enough to dismiss them under the capability procedures is the time and administrative inconvenience of pursuing the disciplinary procedure, and the fact that it is usually procedurally easier to dismiss for long term sickness, and more difficult for an employee to win a claim of unfair dismissal.

Proceeding in the employee’s absence

 The employer does not simply have to put the disciplinary hearing on hold. An alternative is to provide for the disciplinary hearing to be dealt with differently. If the employee is unable to attend the first date set for the disciplinary hearing, they can be given a choice of other ways to deal with it. The following would be a comprehensive choice of alternatives for the employee:-

1. The disciplinary officer could telephone the employee and go over the allegations, giving the employee the opportunity to respond to the allegations without having to physically attend the meeting.

 2. The employee could send in written submissions to the disciplinary hearing.

 3. The employee could send a representative (a Union representative or a work colleague) to attend in their absence and put their case forward.

 4. The disciplinary officer can conduct the disciplinary through email exchanges with the employee on the day set for the disciplinary hearing.

 5. Any combination of the above.


The employer should emphasise that if they do not hear from the employee, the hearing will go ahead in their absence based on the information and documents available.

The employer should provide the employee with more notice of the hearing than normal to allow time to prepare written submissions and arrange representation in their absence.

 Following the decision, the employee should be given the right to appeal, and when an appeal date is set, they should be given the opportunity of either attending personally or using any of the alternatives previously suggested for the disciplinary.



What if the employee turns up to the appeal?


 Whether or not the employee turned up to the original hearing, an appeal should still amount to a full hearing of the disciplinary allegations from the start.If the employee makes no contact and the employer is satisfied that they have received notice, the hearing can proceed in their absence. The disciplinary officer should still consider all the evidence and make a finding on the evidence available, including looking at the employee’s past work and disciplinary record before deciding the sanction. The employee should also be notified in writing of the decision and given the right to appeal.



John Halson Solicitors specialise in Employment Law. If you have any Employment Law issues, please do not hesitate to contact one of our solicitors for assistance, either by phone (0151 524 4540) or email via our website (www.rightsatwork.co.uk)

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