One of the dilemmas which can face employers is what to do if an employee fails (sometimes repeatedly) to attend a disciplinary hearing. Employees are often signed off by their GPs as unfit to attend and this can cause significant and problematic delays, particularly if (as is so often the case) the employee is on paid suspension.
On other occasions employees claim not to have received notice of a hearing. It can be very disruptive to schedule a meeting and take the time of a number of employees to organise for the hearing to take place, only to find that the employee fails to attend.
Generally, as long as an employer has taken all reasonable steps to arrange for the attendance of the employee, it is possible to proceed in his or her absence. However, in going so the employer is inevitably increasing the prospect of an appeal (perhaps with further attendance problems) and, in cases resulting in dismissal, a claim in the tribunal that the dismissal was unfair.
Earlier this month the Court of Appeal considered the problems which can arise in giving notice of a hearing in the case of Nursing & Midwifery Council -v- Borry Jatta. Mr Jatta, a former nurse, was convicted of seven offences of making false or misleading representations about medicinal products. He had obtained drugs for his uncle in the Gambia who was dying of cancer. The drugs were not available in the Gambia.
Mr Jatta received written notice that the Nursing & Midwifery Council would call him to a disciplinary hearing between August and October to consider whether to strike him off. He replied and requested that the hearing be held in September because he would be away on a research trip until mid-July and thereafter would be occupied in completing his dissertation. He asked to be contacted by email but this was refused owing to confidentiality. Mr Jatta said that he would provide an address for mail when he returned from his research trip but did not do so until late August. In the meantime the Council sent a notice on 24th July to his last-known registered address. The hearing took place on 26th August and he was struck off.
It was not in issue that notice of the hearing sent by letter complied with the relevant rules for such hearings.
In the High Court it was decided that the failure to send notice by email amounted to a procedural irregularity so that the decision to strike off Mr Jatta should be quashed. The Council appealled.
The Court of Appeal disagreed with the High Court. Although the Council could have sent an email it did not have to do so. Rather, the onus on the Council was to show that it had taken all reasonable steps to serve notice of the hearing. This was acieved by sending notice by post to the last-known address. It was noted that Mr Jatta had ample time to notify the Council of his change of address.
The case is also notable for confirming that it was not unreasonable for the Council to conduct the hearing in Mr Jatta’s absence. The importance of the case to Mr Jatta was recognised and the evidence was considered carefully so it was in the interests of justice to continue.
While employers should properly be cautious about proceeding in the absence of an employee, there are steps which can be taken to reduce the risk of resulting problems:
- Take all reasonable steps to provide notice of the hearing. If notice is being sent by post, consider recorded delivery. If (but only if) it is appropriate, make a telephone call to confirm receipt of notice of the hearing and the employee’s intention to attend
- Make sure that notice of the hearing is sent in sufficient time.
- Offer to reschedule the meeting if it is inconvenient for the employee.
- Again, only if appropriate, ask the employee to confirm attendance.
- Keep proper records of contact details and make sure that it is up to all employees to notify any changes – consider, making this a contractual term.
- If the employee does not attend, consider whether an adjournment can be rescheduled without causing too much inconvenience; failure to attend on a second occasion makes the decision to proceed in the absence of the employee much easier.
Inability to atend on medical grounds is, of course, more problematic. A reasonable employer is expected to make reasonable allowances in such circumstances. In general, these would include delaying the hearing if the sickness absence is not expected to be long term. If it does become necessary to proceed in the absence of the employee then it is advisable to take steps to make sure that his or her point of view is considered. For example, it may be possible to proceed with the employee’s representative in attendance and perhaps with written representations from the employee concerned.