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Was it right to hold a disciplinary hearing in the absence of an employee?

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This was considered by the Employment Appeal Tribunal (EAT) in the case of Dr A Nabili v The Norfolk Community Health and Care NHS Trust

Dr Nabili was employed as a Consultant Paediatrician and was suspended from practice due to concerns relating to her performance along with patient safety. At the time of the suspension, Dr Nabili was informed that she could not work as a doctor for any NHS Trust or organisation without the permission of her employer. During the investigatory meeting, it came to light that Dr Nabili had breached those terms. Her defence was that she misunderstood the terms of the suspension. The matter proceeded to a disciplinary and Dr Nabili was sent her letter of invitation to the meeting. By that time, Dr Nabili had already booked a flight to Iran as her mother was unwell. Dr Nabili requested that the hearing be postponed until her return.

Whilst this was initially accepted by the NHS trust, the Trust later changed its mind.  The disciplinary hearing continued in Dr Nabili’s absence and that of her representative and the panel made the decision to dismiss.

Dr Nabili brought a claim for unfair dismissal.

The Tribunal decided that proceeding with the hearing in her absence did not render the dismissal unfair. The Tribunal considered the investigation undertaken, the responses Dr Nabili had provided and made the decision that Dr Nabili’s attendance, or that of her representative would not have added anything further to the disciplinary meeting.

The decision was appealed and considered by the EAT.

The EAT disagreed with the Tribunal’s reasoning and instead added that it was relevant whether at the time of dismissal, the employer acted reasonably in the individual circumstances, in deciding that the employee’s presence would have not altered the decision to dismiss.  The EAT found that such decision could not have been made and the Tribunal’s decision was subsequently overturned.

This case serves a useful reminder of the considerations employers are required to take into account when deciding whether a hearing should be postponed. The general rule of thumb is that a first request to postpone should normally be granted and any further requests are balanced with the employee’s requirement to postpone, along with the employer’s need to proceed with the allegations.