Dr Aqdas Nabili is a Consultant Paediatrician who was suspended from clinical practice over concerns about her performance and patient safety. The written terms of her suspension stated that she could not work as a doctor for any other NHS Trust or organisation without the permission of her employer. During an investigatory meeting Dr Nabili admitted breaching these terms and admitted working for another employer. Dr Nabili’s excuse was that she had clearly misunderstood the terms of the suspension.
Dr Nabili was invited to a disciplinary meeting. However, the date of the meeting clashed with a pre-booked flight to Iran to visit her mother who had been taken ill. Dr Nabili requested a postponement of the meeting and her employers agreed to the request. However, the same day, Dr Nabili’s employers changed their mind about granting the postponement, and, having formed the view that they had all the evidence they needed, they made the rather surprising decision to hold the disciplinary meeting in Dr Nabili’s absence.
During the disciplinary meeting, the disciplinary panel made the decision that Dr Nabili should be dismissed. Unsurprisingly, Dr Nabili believed that dismissing her in her absence was unfair and she brought a claim for unfair dismissal.
The Employment Tribunal concluded that it was unclear what other evidence Dr Nabili would usefully be able to submit during a disciplinary meeting. On that basis the Tribunal dismissed Dr Nabili’s claim, and held that the dismissal was fair.
Dr Nabili appealed the decision to the EAT. The EAT overturned the Tribunal's decision, remitting it to a fresh Tribunal on the basis that the Tribunal had not asked the right question. The correct question was not just whether it would have made any difference to the outcome if she had been present at the disciplinary meeting but whether the employer at the time of dismissal, acted reasonably, in the exceptional circumstances of the particular case, in deciding that her presence would have been futile and could not have altered the decision to dismiss.
Looking at the Tribunal's findings, the EAT decided that the Tribunal Judge could not have made a soundly based decision that the employer had decided that Dr Nabili's presence would have been futile.
What does this mean for you or your business?
This is a useful reminder of existing law. There are limited circumstances under which a disciplinary procedure can go ahead without the employee. However, employers must consider all the options, and be able to explain why, taking into account all of the circumstances, it is reasonable to decide it would be "futile" for the employee to attend. This is a high threshold to reach. Notes of the thought process will be critical in establishing this threshold was reached.
Many employers will take the sensible approach and set an alternative date for a disciplinary hearing where it appears that there is a genuine reason for absence. If an employee is repeatedly stalling their attendance this might be a different situation but an employer must be satisfied this is what is happening.
What do you need to be doing now?
It would only be in exceptional circumstances we would advise that a disciplinary meeting can be held in the employee’s absence. On those rare occasions it would be wise at the very least to allow an employee the opportunity to present written submissions to be considered during the meeting. That way, if an employee cannot attend the meeting, the employer will have evidence that it gave the employee every opportunity to take part in it. This should help the employer demonstrate that it has acted ‘reasonably’ in the circumstances.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.