Q&As

In relation to an employee who has been given notice of the termination of their employment by reason of redundancy and placed on garden leave for the duration of their notice period, and in respect of whom gross misconduct is discovered while they are on garden leave, can a disciplinary hearing be convened in the employee’s absence if they decline to cooperate with the investigation or attend a hearing, or if have been booked off sick by their GP and are unable to attend?

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Published on LexisPSL on 01/10/2018

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • In relation to an employee who has been given notice of the termination of their employment by reason of redundancy and placed on garden leave for the duration of their notice period, and in respect of whom gross misconduct is discovered while they are on garden leave, can a disciplinary hearing be convened in the employee’s absence if they decline to cooperate with the investigation or attend a hearing, or if have been booked off sick by their GP and are unable to attend?

During a period of garden leave, an employee remains employed by the employer and, therefore, subject to the (express and implied) terms and conditions of their employment contract. For further information, see Practice Note: Garden leave and the right to work.

Accordingly, an employee can be required to attend a disciplinary hearing during a period of garden leave to answer allegations of misconduct that have subsequently come to light.

As to whether a disciplinary hearing can be convened during the garden leave period in an employee’s absence, as with most aspects of the disciplinary process, an employer is required to act fairly and reasonably when deciding how to proceed. A key element of fairness is that an employee should be given an opportunity to put their case at a hearing before a decision is made on disciplinary action, and, therefore, hearings should go ahead without the employee present only in exceptional circumstances.

The Acas code of practice on disciplinary and grievance procedures (the Acas code) states in relation to the disciplinary hearing: ‘Employers and employees (and their companions) should make every effort to atte

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