7. Failure to attend and last minute adjournments.
The ACAS Code states that employers and employees and their companions should make every effort to attend a disciplinary hearing (paragraph 12).
Employees often seek to postpone disciplinary hearings as a result of illness or lack of availability (of themselves or their specific companion) or because they need more time to consider the case against them and/or gather evidence. As always, the facts will need to be closely considered to determine whether postponement – further to prior or last-minute request – is reasonable. Our advice as regards sickness absence should also be considered here.
If an employee fails to attend the first meeting arranged, it is normally good practice for the employer to rearrange the meeting to an alternative date in order to give the employee a further chance to attend (page 19 of the non-statutory ACAS guide).
Where an employee is persistently unable or unwilling to attend without good cause, the ACAS Code states that the “employer should make a decision on the evidence available” (paragraph 25).
The non-statutory ACAS Guide sets out a number of considerations for employers to weigh up, prior to taking this deciding on a postponement or adjournment, including:
• The seriousness of the disciplinary issue under consideration.
• Any rules the organisation has for dealing with failure to attend disciplinary meetings.
• The employee’s disciplinary record (including current warnings), general work record, work experience, position and length of service.
• Any medical opinion on whether the employee is fit to attend the meeting.
• How similar cases in the past have been dealt with.
The statutory rules with regard to re-arranging hearings where a companion is unable to attend are a little different (i.e. 1 adjournment if a proposed date within 5 days or original hearing is provided). In practice, however, many employers would not make a distinction as to the reason for postponement (i.e. unavailability of the employee or the companion) and would simply agree an alternative time with the employee unless it becomes apparent that the employee is simply stalling.
Employers will rightly be wary of proceeding with the meeting in the employee’s absence without a convincing reason to do so. However, where an employee repeatedly seeks to postpone a rearranged meeting or simply fails to attend without good reason, a decision can in some cases be taken in the employee’s absence. This may not always be sufficient to ensure a fair dismissal. In particular, this is likely to be true if a Tribunal considers that a hearing with the employee present may have resulted in a different decision.