Holding a disciplinary hearing in the absence of the employee

01.08.2016

The EAT has held in A Nabili -v- Norfolk Community Health & Care NHS Trust 2016 that a Tribunal’s decision that it had been reasonable to hold a disciplinary hearing in an employee’s absence could not stand.
Ms Nabili was employed by the Norfolk NHS Trust as a doctor. She was suspended on ‘special leave’ and excluded from clinical practice. During this period she was not permitted to work for any other NHS Trust. It came to Norfolk NHS Trust’s attention that she had in fact done so, and she was invited to an investigatory meeting. She was subsequently invited to a disciplinary hearing to be held on 19 April. However, on 18 March she booked a flight to Iran for 14 April, as her mother was ill. Her BMA representative requested a postponement of the disciplinary meeting. The Trust initially agreed, but sent a second email later that day stating that the hearing would go ahead anyway. Neither Ms Nabili nor her representative attended the meeting, and she was dismissed by the Trust. Her unfair dismissal claim was dismissed by the Tribunal.
The EAT held that the Tribunal had erred in failing to apply the Polkey -v- AE Dayton Services Ltd 1988 decision, which sets out that it is not for the Tribunal itself to ask whether or not it would have been a difference if the Claimant had been at the hearing; rather the Tribunal must be able to conclude that the employer himself, at the time of the dismissal, acted reasonably in taking the view that, were the Claimant to attend the hearing, it would be futile and would not alter the decision to dismiss.
On the basis of the dismissal letter, there was a suggestion that Ms Nabili had been dishonest and as such proper consideration should have been given by the Tribunal as to whether the Trust had in fact considered that the presence of Ms Nabili would be futile and whether that conclusion was reasonable. The Tribunal had failed to determine why the Trust had taken the decision to proceed with the hearing, and it had also failed to consider the fairness of proceeding in the absence of Ms Nabili given the impact of an adverse finding on her ability to work as a doctor.
The claim was remitted to a freshly constituted Tribunal.