Attendance at hearings?

The new ACAS Guidance on Discipline and Grievance is beginning to raise issues. One of these is Rule 24 which reads: "Where an employee is unable or unwilling to attend a (disciplinary) hearing without good cause, the employer can make a decision on the evidence available."

The question is what constitutes a good cause. In particular, this question arises where an employee goes off sick when confronted with a disciplinary hearing. The courts and the Employment Appeal Tribunal have tended to ask a number of questions.

First, there needs to be good medical evidence of unfitness to attend. Second, while an employee may not be fit for work, this does not mean that s/ he is unfit to attend a hearing. There needs to be a specific medical evidence of unfitness to attend the hearing.

Third, there is a limit to how long things can drag on. The courts and tribunals have tended to look at the effects on an already over-loaded system of repeated adjournments. However, it is open to the employer to take the view that an employee is simply incapable of doing the job.

If this is so, the employer can refer to Occupational Health and if the employee refuses, then the employer, as in Rule 24, is allowed to proceed on the evidence available.