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Dismissal in employee’s absence was unfair

BY Gerry O'Hare
Employment Law & HR
BG Purple

Most employers are aware of the risks of dismissing an employee without allowing them to put forward their case at a disciplinary hearing. However, it’s useful to re-examine the reasons why this is important and how an employment tribunal will react.

In the recent case of Nabili v The Norfolk Community Health and Care NHS Trust, a doctor was accused of carrying out work for another employer while she was suspended from work on performance grounds. During the investigation, the employee admitted to the charge and her employer arranged a disciplinary hearing. Dr Nabili requested a postponement on the grounds that she would be abroad visiting her sick mother. After initially agreeing to the postponement, the Trust subsequently changed its mind and proceeded with the hearing in her absence. The employee claimed that this rendered the dismissal unfair.

The ET disagreed with her and found that, since she did not deny the allegations during the disciplinary, it was unclear what she could have added during the disciplinary hearing to avoid her dismissal. When Dr Naibil appealed the decision to the EAT, it found that the tribunal had not asked the correct question and remitted the case back to the ET.

The issue was not whether the employee's presence would have made any difference to the outcome. The relevant question was whether the employer had reasonably concluded:

  • that normal procedural steps, in this case a hearing, were futile;
  • that the hearing could not have altered the decision to dismiss; and
  • that the hearing could therefore be dispensed with.
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