Romford Essex Accountants Blog: Holding A Disciplinary Hearing In An Employee's Absence

The case of Bridgeman v Family Mosaic Housing Association demonstrates that employers should not be too hasty in holding a disciplinary hearing in an employee's absence.

In this case an employee was found to be unfairly dismissed after the disciplinary hearing was held in her absence.

Background

Ms Bridgeman had been employed by Family Mosaic Housing Association in a role supporting vulnerable adults since September 2008. In 2008 and 2009, she had a weak manager who did not provide her with support or an objective assessment of her skills. As a consequence, it was unclear whether or not Ms Bridgeman's performance during that period was satisfactory.

In April 2010, there was a serious incident relating to one of Ms Bridgeman's clients. The association conducted an investigation, which identified shortcomings with her performance that had not come to light earlier because of the poor line management. A disciplinary hearing was arranged, but had to be postponed twice at Ms Bridgeman's request. She was eventually told that, if she did not attend, the disciplinary hearing would go ahead in her absence.

The hearing, took place in August 2010 and resulted in Ms Bridgeman being issued with a final written warning, she was also moved to a new team and placed on a work plan to allow her performance to be monitored.

Issues continued to arise with Ms Bridgeman’s performance – in particular her inadequate risks assessments, which could put vulnerable adults in her care in danger. In January 2011, Ms Jones, her line manager, prepared a report stating that Ms Bridgeman had "failed to demonstrate that she is capable of carrying out the basic functions of her role" and there was "the risk of a serious incident due to lack of competency".

Disciplinary hearing

Ms Bridgeman was absent for part of January with a virus. At the end of January, while she was still off sick, the association invited Ms Bridgeman to a disciplinary hearing. In early February, Ms Bridgeman telephoned the association to say that she was trying to get another sick note for her continued absence.

On the day of the hearing, Ms Bridgeman rang to say that she was not well enough to attend. It was decided that the disciplinary hearing should still proceed in Ms Bridgeman's absence. It was considered that she was being uncooperative and they did not see a reason to postpone the hearing. The view was that the outcome would not have been any different if she had attended. Ms Bridgeman obtained a sick note on 15 February. In a letter dated 16 February, Ms Bridgeman was informed that she was being dismissed, a decision that she appealed unsuccessfully. She claimed unfair dismissal.

At the tribunal

The employment tribunal held that the association had genuine and reasonable grounds for dismissal. However, in their haste to press on with recruiting a replacement, the balance between the needs of the association and Ms Bridgeman's rights was wrong. The decision to go ahead with the hearing on the first occasion on which Ms Bridgeman did not attend was too hasty.

The ACAS Code of Practice on disciplinary and grievance says that where an employee is persistently unable or unwilling to attend a disciplinary hearing without good cause the employer should make a decision on the evidence available. The tribunal in this case stressed that a disciplinary hearing is the "bedrock of a fair dismissal process". The tribunal found that the employer did not have sufficient information to decide whether or not Ms Bridgeman was abusing the system. This was a substantial procedural failing.

If you have any questions concerning this blog or if you want a free copy of our monthly newsletter then please contact us here at Trueman Brown Chartered Accountants.