Disciplinary hearings: What you need to know

An employee takes sick leave when they are due for a disciplinary hearing - what can HR do?

The first issue employers need to understand (and sometimes don’t when they think that an employee is taking sick leave for tactical reasons) is that disciplinary processes are stressful, according to Hamish Kynaston, partner at Buddle Findlay.

“Sometimes an employee will need some time to deal with the stress, particularly if the individual is already suffering from some sought of mental illness, which is common,” Kynaston told HRD.

“An event such as a disciplinary process may bring on symptoms which employees (especially those with a mental illness) may need a bit of time for.

“I would recommend for employers to allow reasonable time and if they are considering advancing the process they should be mindful of the employee’s health.”

Kynaston added that if an employer knows that advancing the process is going to have a harmful effect on the employee then that creates a real risk of liability.

However, in most situations an employer can proceed by simply requesting a medical certificate.

The employer could ask the employee to request some advice on their health so the employer has an understanding of when they might be back and when they could have the discussion.

Moreover, this would involve looking at what steps could be taken to facilitate that and often what they get is a sick leave certificate saying they are not well enough for work.

According to Kynaston, the employer might say ‘I don’t need you to work - what I would like is a one-hour meeting with you to address this issue, can you get some advice on whether you are well enough for that? Can you consider whether you are well enough for that?’

The employer could also say ‘I understand you are not well enough for a meeting but it’s been two or three weeks now and it’s important that we address this, could you please provide a response in writing and we will take the process from there?

“Sometimes it might be as simple as an employer saying: ‘I understand that you don’t want to come into work because that causes you a panic attack or whatever, could we meet somewhere else?’

“The guiding rule has to be that if someone is too unwell to cope with a process then the employer needs to tread really carefully because that creates a legal risk for the organisation.”