Employers have a duty to ensure the health, safety and welfare of their employees which under the Health and Safety at Work Act 1974 means that they should assess and take measures to control risks from work-related stress.
If an employee suffers from stress related ill-health and the court decides that the employer should have been able to prevent it, the employer could be found to be negligent. It is important that any situations of stress are addressed quickly and dealt with appropriately.
Many employers have at one time or another started a disciplinary process only to find that the employee subsequently produces a Doctor’s certificate stating them as not fit for work due to stress. This then raises a number of concerns and may bring into question whether the situation is genuine or a diversion to put any disciplinary meetings on hold.
There is no doubt that going through a disciplinary process causes a certain degree of stress and anxiety for the employee but can an employer still proceed with the disciplinary process and insist they attend a disciplinary hearing?
One issue that should be considered is whether the stress or anxiety may have caused or contributed to the misconduct? Or that going ahead with the disciplinary process may make the employee’s condition worse. On the other hand to put the process on hold prolonging the procedure may have a negative impact on the employee’s health and recovery.
It would not be advised to simply ignore the fact that the employee has been signed off with stress and employers should assess the situation carefully. It may be an option to consider dropping any disciplinary proceedings or postponing and assessing the situation with the benefit of a report from their doctor or an occupational health specialist. Obviously the employee’s consent will be required for this.
In some circumstances the employee, the Doctor and/ or occupational health specialist may all suggest there is no return to work possible with the disciplinary proceedings pending, however, is fitness to work the same as fitness to attend disciplinary meetings?
In these situations an employer may need to make a decision on how best to proceed. It may be that in the interest of rehabilitating the individual and getting them back into the workplace that any disciplinary action is simply dropped, depending on the severity of the offence. For those where the matter is more serious the employer might need to find alternative means of going ahead.
Consideration could be given to conducting the disciplinary over the telephone, at a neutral meeting place or a location near to the employee’s home, or it might be appropriate to invite written submissions of their response and holding a hearing in their absence. In this case the employee would still have the right to appeal any outcome decision and a full re- hearing could be held at a later stage if requested and considered appropriate.
It is important to have consideration for the employee’s wellbeing and recovery throughout. Pressing ahead with disciplinary proceedings regardless could lead to claims of disability discrimination, negligence and potentially unfair dismissal.