Disciplinary meeting during sick leave

This is a common question and the answer is nuanced. The short answer is yes, in many circumstances an employer can hold a disciplinary meeting while you are off sick, but there are important limits on how and when they can do so.

Legal position:

There is no blanket legal rule in England and Wales that prevents an employer from progressing disciplinary proceedings simply because an employee is on sick leave. The key question is whether the employer acts reasonably in all the circumstances, which is the core test under section 98 of the Employment Rights Act 1996 if the matter were ever to reach an unfair dismissal claim.

The ACAS Code of Practice on Disciplinary and Grievance Procedures is the main practical guide. It does not say that proceedings must be paused during sickness absence. What it does say is that the employer must give the employee a reasonable opportunity to attend the hearing and must act fairly throughout.

What the employer should do:

1. Consider obtaining medical evidence, usually through occupational health or a GP report, about whether the employee is well enough to participate in the process. This might mean attending in person, attending remotely, or providing written submissions.

2. Offer reasonable adjustments to enable participation, such as holding the meeting by video or telephone, allowing a companion or representative to attend on the employee's behalf, rescheduling to a later date, or accepting written representations.

3. Not rush the process. If the employee is genuinely too unwell to engage at all, the employer should normally wait a reasonable period. What counts as reasonable depends on the seriousness of the allegations, the likely duration of the absence, and the impact on the business.

4. Warn the employee clearly that if they cannot attend after reasonable adjustments have been offered, the meeting may proceed in their absence. ACAS guidance supports this approach provided the employee has been given a fair opportunity to participate.

When proceeding in absence may be reasonable:

If the employer has made genuine efforts to accommodate the employee, has sought medical evidence, has offered alternatives, and the employee is still unable or unwilling to engage after a reasonable period, the employer may be entitled to proceed in the employee's absence. This is particularly so where the allegations are serious, where delay is causing operational problems, or where the medical evidence suggests no realistic prospect of the employee being fit to attend in the foreseeable future.

When it is likely to be unfair:

If the employer simply presses ahead without making any adjustments, without seeking medical evidence, or without giving the employee a genuine chance to participate, that is likely to be seen as procedurally unfair. If the employee were then dismissed, a tribunal could find the dismissal unfair on procedural grounds alone.

It would also be risky for the employer to proceed if the sickness absence is itself caused by the disciplinary process or workplace issues, without at least acknowledging that and considering what support can be offered.

Disability considerations:

If the employee's illness amounts to a disability within the meaning of the Equality Act 2010, the employer has a duty to make reasonable adjustments. Failure to do so could give rise to a discrimination claim on top of any unfair dismissal claim. This is a separate and additional layer of protection.

Practical considerations for you:

If you are the employee in this situation, the most important things are to engage with the process as far as you are able, even if only in writing, and to communicate clearly with your employer about your condition and what adjustments would help you participate. Simply not responding or refusing to engage can weaken your position significantly, because the employer can then argue it took all reasonable steps and had no choice but to proceed.

If you have a GP or other medical evidence that you are unfit to attend, provide it promptly. If you can suggest a realistic alternative date or format, do so. If your trade union or a representative can attend on your behalf, raise that as an option.

If you believe the employer is acting unreasonably by pressing ahead without proper consideration of your health, keep a clear written record of everything. That record could be important if matters escalate to a grievance or a tribunal claim later.

The overall picture is that sickness absence is not an indefinite shield against disciplinary action, but neither should it be ignored. The employer must act reasonably and fairly, and you should engage as much as your health allows.