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Case law: Dismissal after employee's non-attendance at disciplinary hearing not justified unless employer reasonably concludes employee's attendance would be futile

An employer should not dismiss an employee following a disciplinary hearing that the employee did not attend unless it reasonably concludes that the employee's attendance would be futile, or it risks an unfair dismissal claim, according to a recent legal ruling.

Legal Alert

This update was published in Legal Alert - September 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A doctor was suspended because of doubts about her performance and associated safety concerns. It was alleged that, while suspended, she carried out work for another health trust. Her employer considered this to be gross misconduct. It carried out an investigation and set a date for a disciplinary hearing.

The employee asked for another date for the hearing, for personal reasons. The employer agreed at first, but then changed its mind. The hearing went ahead but the employee did not attend. Later, she was dismissed. She claimed unfair dismissal.

The Employment Tribunal (ET) found that the employee's attendance would not have made any difference – there had been a detailed investigation and she had admitted what she had done – so the dismissal was fair.

However, the Employment Appeal Tribunal said the ET had asked the wrong question. The issue was not whether the outcome of the hearing would have been the same if the employee had attended. Instead, the real question was whether it was reasonable for the employer to decide that:

  • the hearing (or any other normal steps in an employer's procedure) was futile;
  • the employee would have been dismissed whatever happened at the hearing; and
  • the hearing could therefore be dispensed with.

In this case the EAT said that the employee's state of mind was relevant – for example, whether or not she had worked for the other health trust dishonestly, or knowingly in breach of the terms of her suspension. This could have affected the answers to these questions and there was therefore an argument that a reasonable employer would have given her a chance to address the hearing about this. However, the ET had not taken this into account. The case was therefore referred back to the ET for reconsideration.

Operative date

  • Now


  • Employers should not dismiss an employee who does not attend a disciplinary hearing unless it concludes that the employee's attendance would be futile, and its conclusion is reasonable, or they risk an unfair dismissal claim against them.

Case ref: Nabili v The Norfolk Community Health and Care NHS Trust UKEAT/0039/16/RN

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.