3. Progressing the disciplinary procedure when an employee goes on sick leave.

It is not uncommon for an employee to go on sick leave after a disciplinary process has been commenced. This could be due to a condition which existed prior to the disciplinary commencing or as a result of the health strain of going through a disciplinary process.

In this situation the employee should be advised to follow the company’s normal sickness reporting procedure (i.e. notify their manager and/or HR; provide a self-certification and/or doctor’s fit note).

If the employee was suspended from work as part of the disciplinary process: management/HR should consider moving the employee on to company sick pay (or SSP, as relevant) e.g. ending the suspension (temporarily or otherwise) and moving them on to sickness absence. This move can always be reversed should the time come.

With an employee on sickness absence during a disciplinary process, the employer then has to weigh up: dealing with the disciplinary expeditiously (for example where other employees own interests are affected) and dealing with the accused employee who may genuinely not be well enough to attend a hearing or participate in the process.

A related question is whether the employee’s illness – such as anxiety, depression or stress – could have caused or contributed to the alleged disciplinary offence (such as misconduct)? Clearly this may also be true of capability matters (for which a capability or performance management process would ordinarily be followed (rather than a disciplinary process)). If this seems to be a possibility, employers may consider dropping or simply suspending any disciplinary process before assessing the situation using the HSE’s ‘Stress Management Standards’.

If the employee’s absence continues for a significant period of time, the employer may wish to obtain medical advice as to whether the employee is currently fit to attend a disciplinary hearing and, if not, when they are likely to be. This report would have to be undertaken with the employee’s consent – which may have been provided within the employee’s employment contract or may need to be separately requested; if the former, then it is still advisable to seek explicit consent for the current report. Should the employee refuse consent, it may be a misconduct matter (although unlikely to justify dismissal).

The medical report may be obtained from either the employee’s own GP or an independent doctor such as an occupational health (OH) doctor. In the case of a GP, the Access to Medical Reports Act 1988 will need to be complied with. And this may also apply to an OH doctor who has previously treated the employee.

In some circumstances an employee may be described as fit to attend a disciplinary hearing but not fit to return to work. The DWP’s Health and Work Handbook states that: “In these circumstances it is likely that the effects of an unresolved dispute on the employee’s mental health may be greater if the proceedings are postponed. An employee may be unfit for work but fit to engage with the management process. The doctor or nurse will have to assess whether attendance is likely to cause serious deterioration in the employee’s mental or physical health, for example if there is a significant risk of suicide.”. If the individual has severe depression and/or has recently started taking anti-depressants then it may be wise to postpone. In addition, OH may recommend adjustments to the disciplinary process and/or hearing in order to accommodate the employee’s condition.

Eventually, with longer term sickness absence (or a time-critical matter) an employer will have to question whether they hold a disciplinary hearing in the employee’s absence. This would be necessary if OH advise that the employee’s return is not imminent and there is a risk from delaying further – because memories fade or the matter requires an urgent response or other employees (or business partners or clients) are being adversely affected by the delay. In some circumstances it may be appropriate to simply proceed with the hearing without the employee being present; however, alternatives to this include: holding the disciplinary hearing by telephone; holding it at a neutral location; allowing written submissions from the employee; or allowing the employee to attend with a particular companion (e.g. family member or therapist).