Non-Attendance at Disciplinary Hearings: Avoiding Pitfalls

The letter has clearly stated that one possible outcome is summary dismissal. The time for the disciplinary hearing arrives, but the employee does not. There has been no contact to explain the absence. You believe it is an open and shut case. Are you safe to dismiss? 

 

In the recent case of Wilson v Seighford Hall Nursing Home, the answer was No. The wider facts were somewhat extraordinary. Mr Wilson had allegedly wrongfully disposed of an antique overmantel – an ornamental structure above a mantelpiece – at Seighford’s premises to an antiques dealer free of charge, dismissing it as “rotten rubbish” and never realising that it was worth £5 million. He was also accused of fabricating a report of a break in when other items disappeared from the premises. 

 

How, then, did such a dispute end up in the employment tribunal? 

 

Mr Wilson had lived in a caravan on site. He vacated it in July 2020 and left no forwarding address shortly after being suspended on unrelated grounds. Matters drifted. In October 2020, Seighford decided to hold an investigatory hearing, and then a disciplinary hearing, in relation to the overmantel and other disposals of items from the premises. The notification letters, curiously, were left in an onsite post box that Mr Wilson was understood to be accessing for his mail, being a keyholder. When he found out about his dismissal, Mr Wilson issued a claim and denied all knowledge of the post box and the letters. He was awarded unlawfully deducted wages and accrued holiday pay, heads of claim that effectively predated his deemed dismissal date. He also won his unfair dismissal claim, but his damages were reduced by 100% reflecting his contributory fault and overall culpability. 

 

What led to that Pyrrhic victory? In short, Seighford’s failure to ensure that he was properly notified. Insufficient attempts were made to bring the disciplinary process and the dismissal to his attention. It was particularly noted that Seighford had details of a current email address belonging to Mr Wilson’s partner, and failed to use it. Clearly there was no scope for Seighford to claim that the “size and administrative resources” test precluded them from doing so. 

 

But in a sense his victory was not as Pyrrhic as it could have been. One sting in the tail for Seighford was that a dismissal by written notice does not take effect until the employee has read or had a reasonable chance to read the notice. Seighford thought it had notified Mr Wilson on or shortly after 20 November 2020. He asserted that he had only found out on 3 February 2021 when he engaged with ACAS. The tribunal agreed, so the cut off point for the unlawfully deducted wages and holiday pay was the February date, not the November date. 

 

What lessons are to be learned? “Never assume” is a well known guideline. It may be all the more relevant in circumstances where someone is about to lose his livelihood, despite any perceived open and shut background to the disciplinary process. Offsite employees may not be receiving post, and home addresses may change unexpectedly for a variety of reasons. The lesser evil, in the face of an unexplained absence from a disciplinary hearing, may be to adjourn and communicate the date of the reconvened hearing by any sensible means – email, text message, or a home visit as a last resort. If offence is taken, this may be very reasonably met with “would you have preferred to be dismissed without a chance to put your side of the story?” Over and above this, common sense may also dictate asking that employees ensure that their private contact details – for emergency use only, ordinarily – are notified and kept up to date. 

 

Are you in need of any advice about conducting disciplinary hearings? Or about workplace policies relating to employees’ contact details and their use? Please get in touch. Contact David Cooper via dmc@coxcooper.co.uk or via 0121 325 5402.