Disciplinary hearings – should we go ahead without the employee?
This is a regular and vexing question. It usually comes about after a convoluted experience of delays in arranging a disciplinary hearing. The EAT in Nabili v Norfolk Community Health & Care NHS Trust have considered the issue further. The question is partially answered by examining this: would the employee’s attendance be futile in understanding the disciplinary case.
The history to this claim is longstanding and tortuous. Dr Nabili was a Consultant Community Paediatrician. In 2009 and 2010 she had a period of special leave and later a period of exclusion from practice as a result of clinical concerns. Her employer discovered in the summer of 2010 that Dr Nabili was working at the Royal Berkshire Hospital whilst excluded and an investigation commenced.
On 1 April 2011 Dr Nabili was invited to attend a disciplinary hearing on 19 April 2011, but on 18 March she booked a flight to Iran due to family illness. On 12 April her representative sought a postponement of the disciplinary hearing. This was granted, but later the same day, retracted. Instead the suggestion was made that Dr Nabili’s representative should attend the hearing.
The disciplinary panel convened. Neither Dr Nabili nor her representative attended. The panel concluded that they should proceed due to past delays in the process. Ultimately the panel dismissed Dr Nabili for working without permission when on special leave and when excluded. The panel found that her actions were dishonest. Her employment ended on 5 May 2011.
The Employment Tribunal concluded that proceeding in Dr Nabili’s absence was not unfair, but the EAT disagreed.
The EAT considered that whilst the investigation had concluded that Dr Nabili had worked elsewhere (which Dr Nabili admitted during the investigation), the investigation did not find and Dr Nabili did not concede that she had done so dishonestly or knowingly in breach of the terms of her exclusion. Dr Nabili’s state of mind was a matter for the disciplinary panel to consider, and this was something which the panel did consider in her absence and this was recorded in the dismissal outcome letter. Understanding the reasons behind Dr Nabili’s actions played a part in the decision to dismiss and was something which arguably Dr Nabili needed to give evidence in person upon; the futility of whether Dr Nabili should be in attendance was a matter that the Tribunal needed to consider.
The EAT also found that the impact of the adverse disciplinary finding on her ability to work as a doctor was a factor that should have been considered when the panel decided to proceed with the hearing in her absence.
If a postponement of a hearing is requested, all of the circumstances must be taken into account. Some of the primary facts here were not in dispute but the basis of the panel’s decision seems to have included doubts about Dr Nabili’s honesty. If those doubts can only be answered only by attendance at a disciplinary hearing, it will weigh heavily in the balancing exercise of granting a postponement. Proceeding with a disciplinary hearing in the absence of the employee is a decision which must be carefully considered.