Occasionally, an employee may be unwilling or unable to attend a grievance or disciplinary meeting. It could be an investigatory meeting, or even a hearing. Here's our advice on how to handle this situation.
An employee is generally required to comply with a reasonable request from management. Requiring someone to attend a meeting would normally qualify as a 'reasonable request' but there are still some reasons why a worker might not attend.
If an employee is refusing to attend a meeting, they may cite 'stress and anxiety' as a reason. This often occurs when the worker has also been signed off sick from work, usually for the same reason.
There are a number of approaches you can try...
First, you can offer to reschedule the meeting for a date in the near future, if the individual needs a little extra time to prepare. Depending upon their reasons for not attending, it may be reasonable to offer to reschedule more than once.
If the employee is claiming that their mental health prevents them from turning up to a meeting, you can ask them to discuss what 'reasonable adjustments' might help.
For example, would meeting at a different venue or a neutral location help? Perhaps a video meeting or phone call instead of an in-person meeting? Is there a particular companion that might help them feel more comfortable?
If it's an investigation meeting, another option would be to prepare a set of written questions and send those to the employee, so that they can submit a written response. For a disciplinary hearing, the employee can submit written representations.
The employee may claim to have a letter from their doctor that says they are too unwell to participate in the meeting. You are entitled to be provided with a copy, which may be a 'fitness for work' statement, informally known as a 'sick note'.
It is naturally important to ensure an employee's wellbeing. However, some medical professionals do not fully consider the implications before deciding that a worker cannot engage with their employer.
The Royal College of GPs has produced the Health and Work Handbook in collaboration with both the Society and Faculty of Occupational Medicine. This is written by medical professionals for medical professionals. In that handbook, it states:
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.
This guidance is echoed in the Ethics Guidance from the Faculty of Occupational Medicine:
It will often be the case that the worker will find the proceedings distressing, but […] delaying the process for a prolonged period will be likely to be more damaging to his health, especially his mental health, than continuing with it.
In other words, delaying the process may do more harm than good.
You cannot argue against the medical advice of the doctor. What you can do is remind them of the above guidance and ask them some specific questions:
It is good practice to ask an Occupational Health specialist to provide a medical report on the employee's fitness to participate in the meeting. This report should also address the above questions.
It is always in the best interests of the employee to engage with the process, because it gives them the opportunity to have their say. Hopefully, the above will help 'unstick' a reluctant employee citing sickness as a reason for not attending, but if not, you may have to have the meeting in their absence.
The employer is entitled to carry out an investigation. In fact, the employer usually has an obligation to do so.
There may be a duty of care to both the worker and other staff to investigate any allegations. An investigation may identify disciplinary actions that need to be taken, or remedial measures that need putting in place.
It is not wise or reasonable to stall a process indefinitely. The Acas code of practice also recognises that this situation can arise. The Acas guidance states:
If the employee is too sick, or continues to be not able or not willing to attend, the person investigating will need to look at all other evidence and make a reasonable decision. [...] The employer might decide they need to carry on with the investigation without the employee. If they do, they should tell the employee.
We would recommend a polite but clear communication to the employee, advising them that if they remain unable or unwilling to engage with the process, you will continue without them. You can even offer them a short deadline to give them another opportunity to participate.
However, you should only go down this route when all the appropriate steps and alternatives for enabling the employee to participate have been exhausted.
If you do end up carrying out an investigation or a disciplinary hearing without the employee, you must still take care to follow a fair process.
You will need to consider all the evidence available, even without further input from the individual.
Use the 'balance of probability' to determine your findings on the issues. Be careful not to assume the individual is in the wrong, or their views are unfounded, simply because they didn't attend the meeting.
In summary, you should be sure that:
The outcome should be documented and provided in writing to the individual as usual, together with any right of appeal that may be applicable.
If the issue ends up at an employment tribunal, the tribunal will expect a detailed explanation of why you went ahead without the employee present. This explanation will need to include all the efforts you went through to try and secure their attendance, along with all the alternatives you explored.
There are some things you can do to reduce the risk of a successful unfair dismissal claim.
The employee would still have the right to appeal your decision. If they do, it's generally a good idea to hold a full re-hearing on the appeal so that any procedural issues in the initial decision can be corrected.
A re-hearing will also address the possibility that the employee's participation would have resulted in a different outcome.
Also, if a disciplinary hearing results in a dismissal decision, it's important to ensure you have a clear record of when notice of dismissal was communicated to the employee.
Prior case law has found that the effective date of termination is when the employee read the termination letter, and not when it was sent. See Gisda Cyf v Barratt [2010] UKSC 41.
Therefore, it may not be enough to just email the decision letter, as 'read receipts' on emails are not always reliable. Sending it via recorded delivery or, if practical, hand delivery are also options.
In summary, as an employer you are perfectly within your rights to carry out an investigation or hold a hearing without the employee if they are unwilling or unable to participate. However, you need to be rigorous about ensuring all reasonable alternatives are explored before going ahead without the employee.
