Delaying the disciplinary process

When an employer and an employee are going through a disciplinary procedure they are meant to follow the ACAS code^[1]. This is not only for the benefit of the employer and the employee so that a fair and considered disciplinary procedure has been followed but also that if it goes all the way to tribunal there may be implications with regard to the final award. One section of the ACAS code which needs to be considered is to do with the timing of the disciplinary process.

It is stated in the code that employers and employees should not unreasonably delay meetings, decisions or confirmation of those decision. Now this can swing both ways and it can be viewed that both the employer and employee can be guilty of delaying the disciplinary process. This can be with the employer failing to investigate the disciplinary matter in a timely fashion or the employee may keep putting off the disciplinary meeting by saying they are unable to attend. If either side is viewed as not following the ACAS code then they can have an adjustment (either reduction or increase) of up to 25% if the tribunal feel it is just and equitable to do so. ^[2]

If the employee is unable to attend a disciplinary meeting the employer should not be too hasty in holding a hearing with the employee absent. A tribunal has stressed that the right to a disciplinary hearing is “the bedrock of a fair dismissal process” and it can’t be ignored lightly.^[3] They should not rush into an unattended disciplinary meeting and they do need to inform the employee if this is going to happen.

It is often the case that when an employee gets notice of a disciplinary hearing they suddenly have to take time off sick. During this time the employer should try to do as much as they can without the employee there but if they feel the absence is only going to be for a short period of time it would be advisable to postpone the meeting until they are in a fit state to do so. The employer should if they want to carry on with a meeting request confirmation from the employee’s doctor that they are fit enough for a hearing (but not necessarily for a return to work) otherwise again this might stand against them.

However just because the employee fails to attend and the employer holds the meeting in their absence it does not automatically mean it will be viewed as unfair or indeed lead to an adjustment in the compensatory award. If for example the employee makes no attempt to request further time to prepare for a disciplinary and then tries to rely on lack of notice at tribunal it will generally be frowned upon by the tribunal itself.^[4] Indeed even if the employees are advised by their union rep to not attend the meeting and try to postpone the meeting and the employer holds it in their absence they won’t necessarily be held accountable for it (In this case the tribunal found the employer had acted reasonably throughout the procedure).^[5]

It is therefore in the best interests of all parties to try and complete the disciplinary process is as reasonable time as possible and not waste each other’s time as it could lead to unnecessary consequences.