An employer's guide to stress absence during disciplinary proceedings

It is becoming increasingly common for employees who are facing disciplinary proceedings to submit a fit note signing them off work on account of stress. It is understandable that an employee may find such a situation difficult but the absence can delay the process, which may also serve to aggravate the employee’s situation. Nevertheless, it is not appropriate to push forward with the process if the employee’s state of health is such that they are not fit to deal with the situation.

So what should you do? First of all, acknowledge receipt of the fit note and make it clear that the current proceedings will be put on hold pending further information and that the situation will be reviewed. See Acknowledgment letter.

When a fit note is received from an employee in these circumstances, an organisation should apply its usual absence management procedures for keeping in touch, arranging occupational health support etc. However, those responsible for keeping in touch should not be the same people involved in investigating or progressing the disciplinary matter.

You may want to send an employee for an independent medical examination and, when this is agreed with the employee, you should arrange for them to see an Occupational Health Physician (OHP) as soon as possible. This is with a view to them examining the employee to assess their health generally and whether or not they are fit to participate in the disciplinary proceedings. See model letter to Occupational Health.

It is important to tell the employee the reason for the OHP appointment and why it is in their interest to attend. Consider whether there might be any barriers to their attending and how these might be overcome e.g. can the OHP visit the employee at home? Can transport be arranged to and from the employee’s home to the appointment? Etc.

In addition to the normal questions that you would ask in a medical report, the OHP should also be asked the following questions:

• Is the employee able to understand the allegations against them?
• Is the employee able to distinguish between right and wrong?
• Does the employee have the ability to understand and participate in the proceedings, with or without adjustments? (Adjustments might include extra time, allowing the employee to participate in writing, having the meeting off-site or to have a friend or relative of the employee attend the hearing with them.)
• Is the employee able to provide a written statement?

In most cases, the OHP will advise that the employee is fit to participate, although in some cases this may be subject to adjustments (even if the employee is not disabled). One of the points you might need to consider when progressing the disciplinary is whether stress might have been a factor in the conduct issue that is being investigated.

Where the OHP says that the employee is not fit to participate, this does not prevent you from continuing with as much investigation as possible by taking statements from other witnesses etc. If the OHP has confirmed that the employee is able to provide a written statement, then you could ask the employee to do this as part of the investigation, allowing them support and sufficient time to do so. The organisation should continue to operate the absence management procedure by maintaining home visits, if appropriate, addressing any steps that the OHP might suggest would help the employee get back to health and work, and reviewing the employee’s fitness again in line with the time frame suggested by the OHP.

If the employee’s absence continues, despite any reviews, and the matter is becoming more pressing, speak to your HR Rely adviser before progressing the matter further.