In this case, the EAT overturned a decision that it had been reasonable to hold a disciplinary hearing in the employee's absence.
Dr Aqdas Nabili is a Consultant Paediatrician. She was suspended from clinical practice over concerns about her performance and patient safety. The written terms of her suspension stated that she could not work as a doctor for any other NHS Trust or organisation without the permission of her employer. She breached these terms. At an investigatory meeting, she admitted that she had done so, but said that she had misunderstood the terms of the suspension. She was invited to a disciplinary meeting. However, she had already booked a flight to Iran as her mother had been taken ill. A postponement was requested. Her employer initially agreed to the request, but the same day, it changed its mind. The disciplinary panel went ahead with the hearing without either Dr Nabili or her representative. She was dismissed, and brought a claim for unfair dismissal.
The tribunal concluded that, in the light of the full investigation meeting and responses that Dr Nabili had given in the investigation, it was unclear what else she or her representative would have been able to say about the allegations in the disciplinary meeting. Proceeding in her absence, according to the tribunal, in these circumstances did not make her dismissal unfair.
Dr Nabili appealed. The EAT overturned the tribunal's decision, remitting it to a fresh tribunal, because the tribunal had not asked the right question. The correct question was not just whether it would have made any difference to the outcome if she had been present, but whether the employer:
- at the time of dismissal,
- acted reasonably, in the exceptional circumstances of the particular case,
- in deciding that her presence would have been futile and could not have altered the decision to dismiss.
Looking at the tribunal's findings, the EAT decided that the tribunal judge could not have made a soundly based decision that the employer had decided that Dr Nabili's presence would have been futile.
What does this mean for employers?
This is a useful reminder of existing law. There are circumstances under which a disciplinary procedure can go ahead without the employee, but employers must consider all the options, and be able to articulate why, taking into account all the circumstances, it was reasonable to decide at the time that it would be "futile" for the employee to attend. This is a high threshold to reach. Notes of the thought process will be paramount in establishing this threshold was reached.
The EAT pointed out that one of the circumstances that should be considered is the effect of the adverse outcome on the ability of the employee to pursue his/her chosen career. Where there are regulatory implications associated with dismissing an employee, employers should tread particularly carefully when disregarding procedural safeguards.