When dealing with misconduct by a member of staff, it is important that a fair procedure is followed, otherwise any resulting dismissal may be considered unfair (providing the individual satisfies the eligibility criteria for bringing an unfair dismissal claim). In accordance with the LRA Code of Practice, a disciplinary hearing to discuss any potential issues with an employee is necessary before any disciplinary action is taken. Both the employee and employer should make every effort to attend this meeting.

As per the Labour Relations Agency (LRA) Code of Practice, if an employee cannot attend a disciplinary meeting through reasons which are outside his/her control and of which are unforeseeable, the employer should arrange another meeting at an alternative date and give the employee a further chance to attend. Employees should be made aware that, where it is reasonable to do so, decisions may be taken in their absence if they fail to attend re-arranged meetings or fail to attend without good reason.

However, a common problem for employers is that an employee may continuously refuse to attend due to ill-health. Medical evidence may be required to ascertain whether an employee is fit to attend the meeting and, if not, when they are likely to be. Please note that if a medical report is obtained on an employee, under GDPR employers cannot rely upon contractual consent to process personal data contained within the report.

Consideration should also be given to alternative ways of conducting the disciplinary hearing, such as by telephone, zoom or at a location nearer the employee’s home address. If the employee is ill for example and has failed to attend the re-arranged meeting, the employee could perhaps send in a written statement or ask a representative to attend the meeting on their behalf.

Employers should be aware that previous authorities on this topic have held that employers should have a compelling reason for proceeding with a disciplinary process in an employee's absence. Therefore, there is no one-size-fits-all approach to this issue and the particular circumstances will have to be taken into account.