HR Advice Hub

Can a Disciplinary Hearing Go Ahead Without the Employee?

Can a disciplinary hearing go ahead without the employee?It's a question many employers ask when someone doesn't attend, repeatedly postpones the meeting or is off sick.

In some circumstances, the answer is yes. However, it should never be the default approach. Before deciding to proceed in an employee's absence, employers should carefully consider why they're not attending and whether they've been given a fair opportunity to participate.

Getting this wrong could result in an unfair disciplinary process, while delaying matters unnecessarily can make it harder to resolve workplace issues. Striking the right balance is key.

Employees Should Be Given the Opportunity to Attend

A disciplinary hearing is an employee's opportunity to hear the concerns being raised, respond to the allegations and present their version of events before any decision is made. Before the hearing takes place, employers should normally ensure the employee has:

• received written details of the allegations

• been provided with any evidence that will be discussed

• been given reasonable notice of the hearing

• been informed of their right to be accompanied (where applicable)

• had the opportunity to prepare and respond

Giving employees a genuine opportunity to participate is one of the key principles of a fair disciplinary process and is an important part of following the ACAS Code of Practice.

Can a Disciplinary Hearing Go Ahead Without the Employee?

Yes, but only where it is reasonable to do so. There is no rule that says an employer must postpone a disciplinary hearing indefinitely if an employee does not attend. Equally, employers should not rush to proceed simply because someone misses a meeting.

Instead, each situation should be considered on its own facts. Employers should think about why the employee is not attending, whether they've engaged with the process and whether there is anything that could reasonably be done to enable them to participate.

If the Employee Refuses to Attend

Sometimes an employee simply decides they do not wish to engage with the disciplinary process. If they have received the invitation, understand the allegations against them and choose not to attend without a reasonable explanation, the employer may decide it is appropriate to continue without them. Before reaching that point, it is sensible to:

• ask why they are unwilling to attend

• explain the potential consequences of not participating

• give them a reasonable opportunity to reconsider

• offer the option of providing written representations

If the employee still chooses not to engage, a decision may need to be made using the information available.

If the Employee Repeatedly Fails to Attend

Sometimes employees do not refuse outright to attend a disciplinary hearing but repeatedly postpone it or fail to attend at short notice. While employers should remain flexible where there is a genuine reason, there will usually come a point where further delays are no longer reasonable. Before deciding to proceed without the employee, employers should consider:

• Has the employee explained why they cannot attend?

• Have they provided any supporting evidence, such as medical information?

• Have alternative dates been offered?

• Could the meeting take place remotely?

• Are there any reasonable adjustments that would enable them to participate?

If there is no realistic prospect of the employee attending despite reasonable efforts by the employer, it may be fair to proceed in their absence.

Can a Disciplinary Hearing Go Ahead if the Employee Is Off Sick?

This is one of the most common situations employers face. Being signed off sick does not automatically prevent a disciplinary hearing from taking place. Instead, employers should consider:

• the reason for the sickness absence

• whether the employee is medically fit to participate

• any medical advice available

• whether reasonable adjustments could enable attendance

Reasonable adjustments might include:

• postponing the hearing for a short period

• holding the meeting remotely

• allowing additional breaks

• shortening the hearing

• accepting written representations

• allowing a representative to attend where appropriate

Where there is uncertainty about an employee's ability to participate, obtaining medical advice or making an Occupational Health referral may help employers decide whether it is reasonable to continue.

How Many Times Should a Disciplinary Hearing Be Postponed?

There is no set number. The law does not specify how many opportunities an employee must be given before a disciplinary hearing can proceed without them. Instead, employers should be able to demonstrate that they have acted reasonably throughout the process. That may include:

• offering alternative hearing dates

• considering requests for postponement

• responding appropriately to medical evidence

• exploring reasonable adjustments

• maintaining regular communication

Every case will depend on its own individual circumstances.

Can Someone Attend on the Employee's Behalf?

Employees normally have the statutory right to be accompanied at a disciplinary hearing by:

• a workplace colleague, or

• a trade union representative.

A companion can support the employee during the meeting but would not answer questions on the employee's behalf. Where an employee genuinely cannot attend, employers may also wish to consider written representations instead, before making any decision.

What Are the Risks of Proceeding Without the Employee?

Proceeding with a disciplinary hearing in the employee's absence is sometimes appropriate, but employers should recognise the potential risks. If the employee has not been given a fair opportunity to respond to the allegations, any disciplinary outcome could later be challenged. Should a claim arise, an employment tribunal is likely to consider whether the employer acted reasonably in all the circumstances. This may include looking at questions such as:

• Was the employee given sufficient notice?

• Were the reasons for non-attendance properly considered?

• Were reasonable adjustments explored where appropriate?

• Was there unnecessary delay?

• Did the employer follow a fair disciplinary process?

Keeping clear records of invitations, correspondence, postponements and the reasons behind decisions can be invaluable if the fairness of the process is ever questioned.

Practical Tips for Employers

If an employee does not attend a disciplinary hearing:

• find out why before making any decisions

• consider whether the reason is genuine

• offer an alternative date where appropriate

• explore reasonable adjustments if illness or disability is involved

• consider written representations if attendance is not possible

• keep a clear record of all communication

• only proceed in their absence where it is reasonable to do so

Taking a measured and well-documented approach will help demonstrate that your decision was fair, proportionate and based on the individual circumstances.

Need HR Support?

An employee who refuses to engage with the process is very different from someone who is genuinely unable to attend because of ill health or other exceptional circumstances. Every situation should be considered on its own merits, with employers balancing the need to deal with workplace issues promptly against the employee's right to a fair process.

If you're unsure whether it's appropriate to proceed with a disciplinary hearing, or you'd like support managing a disciplinary process from start to finish, BloomHR can help. We can advise on the process, review your documentation and support managers to ensure disciplinary matters are handled fairly, consistently and in line with best practice. Contact us for more information.