What are their rights in relation to refusing an invitation to an appeal hearing while they are signed off by a doctor as unfit to work?
The legal verdict
Esther Smith, partner at Thomas Eggar
Just because an employee has been signed off as unfit to work doesn’t necessarily mean that they are unfit to attend a meeting related to their grievance.
If they do not agree to attend the hearing and you want to verify whether they are fit to attend even though signed off sick, you could seek a report from their GP.
If the GP says that the employee is fit to attend but they still don’t, you could hold the appeal hearing in their absence. However, if the GP says that they are not fit to attend, you will have to postpone it until they are.
The legal verdict
David Ludlow, head of employment law at Barlow Robbins LLP
It is an implied term of all employment contracts that an employer will provide employees with a reasonable opportunity to air a grievance.
This right extends to, and includes, the basic rule of natural justice of giving them a right of appeal or, more precisely, a reasonable opportunity to appeal.
This approach is reflected in the ACAS Code of Practice on Disciplinary and Grievance Procedures 2009 and the subsequent 2011 Guide thereto: the ACAS Guide: Discipline and Grievances at Work (2011).
It appears that, in this instance, the aggrieved employee has appealed, I am assuming, in writing and within a reasonable period of time after being informed of their employer’s decision.
As a result, the employer should, in accordance with its basic contractual obligation and the ACAS Code, ‘hear’ the appeal without unreasonable delay. This approach is in the interests of all concerned, including the other member of staff who, not unreasonably, will not want the matter to be delayed.
The aggrieved employee, therefore, has a limited right of a reasonable opportunity to appeal.
Each case will turn on its own facts, including the nature, extent, cause and prognosis of the illness, as reflected in the GP’s Statement of Fitness to Work; the grounds of the appeal; the proposed timing of the appeal hearing in relation to the original decision being taken and the date that the aggrieved employee went on sick leave.
For example, the staff member could appeal on the grounds that the original decision-maker or panel hearing the appeal was biased - whether actually or apparently biased - and so they should have recused themselves from dealing with the matter.
Similarly, if the aggrieved employee has made it clear that they believe the person put forward to deal with the appeal is biased (or otherwise inappropriate) and that the situation has caused or contributed to their illness, a court or tribunal could well take a more sympathetic attitude towards a decision by them to refuse an invitation to the appeal hearing.
In most cases of this sort, where the illness does not amount to a disability, if the employee has appealed in writing and spelled out their grounds for appeal, both parties would be acting reasonably and be within their rights to suggest that the appeal meeting goes ahead on the basis of written representations only, or by telephone, or conceivably by way of audio visual conferencing.
The significance of the employer acting reasonably is, of course, that the staff member could not then succeed with a constructive dismissal claim.
In serious cases where, for example, employers are concerned about the procedural propriety of the process leading up to the original decision and wish to use an appeal hearing to rectify it, they would be well advised to proceed with caution and ensure that they are seen to take reasonable steps to accommodate the aggrieved employee.
Conversely, if the employer considers that the now absent staff member has acted vexatiously, in bad faith or otherwise unreasonably, they could, in practice, safely take a more robust attitude and deal with the situation on the basis of those grounds for appeal of which they are aware.
Indeed, it is conceivable that an employer who dismissed an employee in such circumstances might well be acting fairly on the grounds of “some (other) substantial reason”, for example, an irreconcilable breakdown in relations between the two members of staff.