The question of establishing an employee’s fitness to attend a disciplinary hearing is not a new one. You would think then that with all the advice available on the internet from lawyers, HR specialists etc that managing this scenario would by now be well understood and managed well by all.
So why do so many companies still have problems? Here at the Occupational Health Business we see many cases where the situation has escalated out of all proportion to the original issue and the case is rapidly heading down the legal route. Many employees end up developing a health issue or the situation makes an existing health issue worse.…….not good outcomes.
There are some key points I believe, to consider regarding the role of ill health in poor performance and high levels of sickness absence where a disciplinary hearing may be held as a consequence. If these points are considered at an early stage, it might make a difference to the outcomes of disciplinary procedures in your organisation.
1. There’s a disciplinary and then there’s a disciplinary.
It seems that some disciplinary policies are just not detailed or flexible enough to vary the course of action according to the type of misconduct in question. The disciplinary procedure therefore becomes a ‘broad brush’ and whilst it effectively deals with some situations, it is inadequate in dealing with others. There is a vast difference in my opinion between these 2 cases:-
Case one- employee found with a car boot full of stolen company goods.
Case Two- employee’s work performance deteriorating for no apparent reason.
Are your policies able to deal with the difference?
2. Consider health at every stage
Many medical conditions can have an adverse effect on fitness to work and these can be subtle at times. Any changes in behaviour and performance should be investigated further and the impact of any known or unknown medical condition should be considered even if at first it doesn’t seem relevant. You cannot know if it’s relevant if you don’t get an Occupational Health opinion.
Generally people do not underperform for fun. The development of a health issue can cause deterioration in performance and even cause behaviour which is completely out of character in the case of some mental health issues. The impact of these changes on work performance can go unnoticed, even by the employee themself. Referring to an Occupational Health clinician providing details of the poor performance, in the referral, can provide employers with an opinion on whether the health issue may be having an impact in key performance areas. This should be done at the beginning of any process, not just as an afterthought before dismissal.
3. Review sickness absence record.
Even if at first health does not seem relevant to the reason why disciplinary action is being considered…it might be and so it’s important to take steps to review the employee health record. Reviewing the sickness absence and accident record may provide useful information. Looking at the risks and hazards an employee is exposed to at work is also important. Are you sure there is no workplace link between occupational exposure, ill health and poor performance? Refer to Occupational Health and get this aspect checked out.
Employees with medical conditions may be likely to have a higher than average sickness absence record. Threatening disciplinary action in the hope that absence will reduce doesn’t work. If the absence record is high and unsustainable Access to Work will often provide solutions and funding to keep the employee in work. Dismissing without taking account of the Equality Act will take you swiftly to an Employment Tribunal where the levels of compensation are unlimited.
4. Building a Relationship with Occupational Health.
If Occupational Health is in its correct place within an organisation, it benefits both employer and employee. Employers receive business focused support in managing employee health and employees see Occupational Health as a positive support for health and wellbeing. As a consequence, they are certainly more likely to agree to an appointment with OH if they subsequently go off sick with ‘stress’ after being notified of disciplinary action. We as OH professionals have the skills to assess individual’s fitness to attend a disciplinary and will always advise that they should attend and not avoid the process.
Review your policies to ensure you have OH woven into them not just as an add on when things look as if they are heading in the wrong direction. Using Occupational Health for an opinion rather than a GP will give you a prompt response regarding fitness to attend a disciplinary rather than waiting weeks for the GP report whilst the employee situation deteriorates.
5. Hindsight.
In 9 cases out of 10 you will be able to predict what the employee’s reaction to the notification of the disciplinary process will be. So why are there still surprises? Consider in advance what kind of employee you are dealing with. Before the employee is notified of the disciplinary employers should give some thought to what may happen next and plan accordingly. Is the employee likely to become upset and go off with ‘stress’? Do they have a medical condition which may be worsened by the process? Have you considered if the Equality Act may apply and sought appropriate advice?
By reviewing policies and considering the effect ill health may have in poor performance at work, it may be possible to have a more favourable outcome when you next notify an employee that they are required to attend a disciplinary meeting.
So, is there a case for thinking differently next time?