Retail surgery: Can a disciplinary process proceed for an employee on sickness absence?

Sickness absence during a disciplinary process is not uncommon. But an employee unfit to work may still be fit to attend a disciplinary hearing. Browne Jacobson employment partner Dawn Lobley says retailers should have a policy for managing sickness absence and disciplinary processes and ensure they follow it.

“Discussion of pending disciplinary proceedings should be managed carefully; and the information may be better expressed in writing initially,” says Lobley. “The retailer should also make it clear that once the employee is fit for work, they may face disciplinary proceedings, otherwise the employee may claim on return from sickness absence that the matter occurred so long ago that it would be unfair to deal with it.”

It may be appropriate to obtain medical advice about proceeding with the disciplinary process. If a doctor indicates the employee cannot medically attend, the employer should consider delaying the hearing, particularly if the absence is likely to be short term. Alternatives to attendance at a hearing may also be considered, such as the employee providing their arguments in writing or through their trade union representative or work colleague.

Even where the disciplinary hearing is delayed, it does not mean that the whole procedure should stop, adds Lobley. “Preparation that does not require the direct input of the employee such as obtaining witness statements from other employees and collating relevant documentation should continue during the absence.”