What to do when an employee who goes off sick at the outset of a disciplinary investigation or during the disciplinary process

  • Liz Jackson

What to do when an employee who goes off sick at the outset of a disciplinary investigation or during the disciplinary process

If your employee goes off sick at the outset of a disciplinary investigation or during the disciplinary process, you should complete as much of the process as you can in the employee’s absence, for example conducting investigatory interviews with witnesses and collecting all relevant documentation.

If the absence is likely to be short term, you can postpone completion of the process until the employee’s return.

If the employee’s absence is likely to be lengthy, then different considerations are likely to be applied as you must balance the need to avoid unreasonable delay in the process with the importance of allowing the employee to put his or her case before you reach a decision.   You as the employer must therefore ensure that you take appropriate steps to allow the employee the chance to participate in the process.

You should take steps to determine whether or not your employee is well enough to attend a disciplinary hearing, even though he or she is not fit for work and if necessary, you should then obtain medical evidence focused on the employee’s ability to take part in a disciplinary hearing, and what, if any, reasonable adjustments could be made to facilitate his or her attendance.  Reasonable adjustments could include holding the hearing in the employee’s home or location of choice, allowing him or her to be accompanied by a family member or incorporating frequent breaks into the hearing.

If the employee is still unable to attend, you should consider putting the disciplinary process on hold until the employee is well enough. A disciplinary hearing should only go ahead in an employee’s absence in exceptional cases.  If the disciplinary hearing takes place and this results in dismissal and the employee was not in attendance, you, as the employer could face claims for unfair dismissal and if the employee is disabled, also disability discrimination.

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