Mutual agreement is best way forward
When it was announced on 24 May this year that footballer Joey Barton would be plying his trade in the Scottish Premier League, fans were hopeful he would make a big impact. Instead, following allegations of a training ground dispute, disciplinary investigation, six-week suspension, reinstatement to train with the youth team and absence due to stress, a "mutual agreement" was reached to terminate his employment after only 133 days and without further comment by Barton or Rangers.The situation attracted significant media attention. However, if we strip away the public profile of the parties involved, a fairly typical scenario remains: one in which an employer finds itself in a stalemate when trying to discipline an employee.
For an employee, a disciplinary investigation can be daunting. They may feel aggrieved the company has deemed their behaviour to amount to misconduct or perceive that their future employment is at risk. If the employer feels it has a strong case against the employee it will want to proceed as quickly as possible to resolve the matter and move on.
However, for an employee, particularly one who feels the outcome has already been determined, there is little incentive to engage with the process. On the contrary, as the employee will remain on full pay until a decision is reached this can result in requests to postpone proceedings through last minute call-offs or submission of a fit note.
An employer is entitled to require a suspended employee to attend disciplinary meetings during normal working hours. Nonetheless, the employer would be expected to reschedule a hearing on at least one occasion if the employee provides a good reason.
This does not mean the employer is under an obligation to postpone disciplinary proceedings indefinitely. The employer can proceed with a hearing in the employee's absence if it is reasonable to do so and the employee has been told the hearing will go ahead regardless of their attendance. However, in such circumstances an internal paper trail documenting the consideration given to any postponement request and a reason for continuing in the employee's absence will be required.
The process is more complicated where an employee is unable to engage with the disciplinary process due to ill health. In such circumstances, the employer should make it clear that the employee's absence does not change the fact that they remain suspended pending a disciplinary investigation.
The next step will be whether the absence can be reasonably accommodated by a short postponement. Where the absence appears likely to last for a longer term, the employer should look to clarify the situation. Being unfit for work does not necessarily mean unfit to participate in a disciplinary process: the employer should question the employee, their GP and/or occupational health to determine whether this is the case. The employer can also look to make adjustments to the process, such as permitting the employee to provide written submissions rather than attending a hearing in person, to move the process forward. Where the employee is genuinely unable to engage with the process in any way, the employer must determine whether or not it is necessary to continue in the absence of the employee. Consideration will need to be given to the importance of having the matter resolved, the impact on any other individual involved and the potential impact to the business. Documentation of these considerations will, again, be important.
Whilst no employer is able to foresee every eventuality, the potential for a protracted disciplinary process is something to be alive to. If the alleged misconduct is sufficiently serious, or the business feels the relationship with the employee has irreparably broken down, there can be merit in considering a "mutual agreement" with the employee as an alternative solution. In many scenarios an employer will be reluctant to effectively reward the misconduct of an employee. However, returning to Mr Barton as an example, his reported salary would have cost his employer in the region of £120,000 during his suspension. Combined with the management time and effort involved in a disciplinary process, this cost may have been better spent on focusing upon an agreement at an early stage, rather than keeping the employee away from the business.
Euan Bruce is an Employment Associate, DLA Piper Scotland LLP