An employee was accused of carrying out work for another employer while she was suspended from clinical practice because of performance and safety concerns. The employer viewed this as misconduct. Following an investigation, the employee was invited to a disciplinary hearing. Her representative asked for the hearing to be postponed, because the employee would be overseas visiting her ill mother. Although the postponement request was initially granted, that decision was changed. The hearing went ahead in the employee's absence, as a result of which she was dismissed.
The Employment Tribunal concluded that the dismissal was fair, despite the fact that the employee could not attend the disciplinary hearing. A detailed investigation had been carried out, the employee's position was clear and it was unclear what else she would have been able to say in response to the allegations against her.
The EAT overturned that decision because the Employment Tribunal had not asked itself the right question. The issue was not whether the employee's presence would have made any difference to the outcome. The relevant question was whether the employer had reasonably concluded:
- that normal procedural steps, in this case a hearing, were futile;
- that the hearing could not have altered the decision to dismiss; and
- that the hearing could therefore be dispensed with.
The Employment Tribunal had not decided why the employer went ahead with the hearing in the employee's absence – in fact, two different reasons had been put forward. It was only if the employer had itself concluded that the employee's presence would be futile, and that conclusion was reasonable, that the Tribunal could find the dismissal fair. The case had to return to the Employment Tribunal for the employer's reasons for refusing to postpone the hearing to be looked at again.