Non-Attendance at Disciplinary Hearings: Further Pitfalls

Recently we looked at how an employer had come a cropper when dismissing an employee whose failure to attend a disciplinary hearing was down to not knowing about it. Now for a case of knowing very well about one, but professing inability – or unwillingness – to attend. What happened? 

 

The background to Oise v Spring & Co Solicitors , an employment tribunal decision from August 2022, involved an assistant solicitor Mr Oise sending certain emails to a client without the authority of the firm’s principal, and refusing to apologise to the client and retract the letters when so instructed. He believed he was entitled to send such letters, and had seen them sent on previous occasions. 

 

However, Mr Oise’s refusal to apologise and retract was another matter. As indeed was his unilateral decision to stay away from work because it was “not clear whether I am on suspension or waiting for the disciplinary process to begin”, no such suspension or process having been notified. The firm told him there would be a disciplinary hearing in a week’s time. He reacted by obtaining a two week fit note valid for 6 days beyond the disciplinary hearing. The firm had the last word with “I do not consider you have a genuine illness”. The disciplinary hearing proceeded in his absence and he was dismissed for gross misconduct. Over two years later, he won his claim that the dismissal was unfair. 

 

How come this decision fell outside the range of reasonable responses open to a reasonable employer? The gross insubordination was beyond doubt. The investigation was beyond challenge. However, the decision to proceed with the disciplinary hearing in Mr Oise’s absence, when a gross misconduct dismissal was a potential outcome, was procedurally unfair. 

Leaving aside the paper vindication, Mr Oise’s victory was arguably still Pyrrhic. The tribunal decided he would have been fairly dismissed two weeks later. His awards were reduced by 50% to reflect his conduct, resulting in a token payment of £1,177.51. 

 

What lessons for the employer? The claim was evidently filed at the last minute and took over two years to bring on for trial. The trial took two days. Refusal to postpone the disciplinary hearing cost the employer not only £1,177.51, but also two lost days of productive work time, alongside time spent in conducting the defence, and Counsel fees for trial representation. No one other than the parties will know whether sensible commercial offers may have been made and refused. But in contrast with court claims focused solely upon damages, the tribunal system offers the additional vindication of an unfair dismissal finding. And if Mr Oise’s employer had waited two weeks before holding its disciplinary hearing, he might – just might – have thought again about whether it was worth his while claiming unfair dismissal. 

 

Are you planning, or indeed facing, a disciplinary hearing? Is there an issue about whether it may properly go ahead, or ought to be postponed? A fresh pair of eyes can help. Contact David Cooper via dmc@coxcooper.co.uk or on 0121 325 5402.