It is a scenario that many HR professionals and managers will recognise, just as you begin to investigate a disciplinary matter or schedule a disciplinary hearing, the employee reports themselves as sick. Frequently the sickness absence reason will relate to the formal procedure that is already underway, for example stress or anxiety.
This understandably can create uncertainty for the employer about whether to proceed, postpone, or pause the process altogether. The situation calls for delicately balancing fairness and the employee’s health, with the need to manage the conduct concerns in a timely manner, whilst working within the framework of your Disciplinary Policy and the ACAS Code of Practice, which collectively can be tricky to navigate.
In this article we look at some best practice steps to consider if you find yourself in this situation, where an employee’s sickness is delaying a disciplinary process.
Firstly, it is advisable to acknowledge the sickness absence, seek to understand the reason and maintain contact in a sensitive, non-pressurising way. If the employee hasn’t already provided one, you should request a fit note after the initial 7 calendar days self-certification period.
Secondly, assess whether the illness is short-term or likely to be longer-term, and whether it affects the employee’s ability to engage in the process. The fit note and conversations with the employee may give you an indication of these factors.
Not all sickness absence reasons make continuing with the disciplinary process inappropriate, for example physical health issues may mean the employee is still fit to engage in the process. If, however, the sickness is mental health related, you should take particular care to handle the matter sensitively and avoid exacerbating the employee’s condition.
Employers have a duty to act reasonably, but this does not mean disciplinary proceedings must be put on hold indefinitely.
If the employee informs you that they are not fit to engage in the formal process, the following steps can help maintain balance:
If the employee’s sickness relates to a potential disability (i.e. has a substantial and long-term adverse effect on their ability to carry out normal day-to day activities) the employer has a duty to make reasonable adjustments to the process. Where the disability status is unclear it is advisable to err on the side of caution in your approach.
Even where there is no evidence or indication of a disability, a good employer will still consider making reasonable and compassionate adjustments, as part of fair practice.
This might include:
Adopting a supportive approach in all cases helps maintain trust with the employee and can help the process to run more smoothly. Failing to make reasonable adjustments where a disability exists could amount to disability discrimination, even if the employer’s intention was to proceed fairly.
If occupational health or a doctor states that the employee is fit to engage in the disciplinary process (even if not fit for work duties), then it is usually reasonable to proceed, whilst observing any recommendations occupational health provide on how best to do so.
If, however, the medical advice indicates that participation would negatively impact the employee’s health, the employer should delay the process or explore alternatives such as written submissions, if they haven’t already done so. Proceeding against medical advice is high risk and could expose the business to claims of unfair dismissal, constructive dismissal, or disability discrimination under the Equality Act 2010.
If medical evidence suggests that the employee will not be fit to attend a hearing within a reasonable timeframe, employers can consider proceeding in the absence of the employee, provided the employee:
The hearing chairperson should carefully document the reasoning behind continuing in the employee’s absence, referencing the efforts made to accommodate their participation. In such cases, we recommend you seek legal advice before proceeding.
In instances where an employee goes off sick during a formal disciplinary process clear, compassionate communication is essential. Keep the employee informed of:
All correspondence and decisions should be documented in case the matter is later challenged by the employee.
You don’t have to abandon disciplinary action when an employee goes off sick, but you must handle it sensitively and reasonably. A short delay or practical adjustments often help the employee to engage in the process and demonstrates fairness.
One of the most common pitfalls we see is managers allowing frustration, emotion, or personal judgement to influence how they handle the matter. It is natural to feel disappointed when a disciplinary process is delayed, but decisions should be grounded in facts and evidence, not assumptions about the employee’s motives and behaviours. When emotions cloud judgement, employers risk losing objectivity and failing to follow a fair process, which can turn a manageable issue into a legal one.
If you would like support or advice in relation to sickness absence during a disciplinary process, please do not hesitate to contact a member of our team.
Appointments are available by telephone or via video call, so no matter where you are in England or Wales we can assist you.
The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.
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