As you may have seen in the recent media, Rangers Football club and Joey Barton has been the topic of conversation.
Joey Barton signed a two year contract earlier this year for the football club but there was allegation of a training ground dispute. Which led to a disciplinary investigation with a six week suspension. Barton was given a reinstatement to train with the Club’s youth team. However, Barton was then absent due to stress. Recently, a mutual agreement was reached to terminate his employment.
In employment, this is a typical scenario, a company finding itself in a stalemate when trying to discipline an employee.
For employees a disciplinary investigation is often thought to be a worrying process. They may feel the company believe their actions amount to misconduct or feel their job is at risk. If the company feels it is a strong case against the employee, it will want to proceed as quickly as possible but if an employee feels a outcome has already been determined, there is little incentive to engage with the process. As the employee is on full pay until a decision is reached, requests to postpone proceedings or submission of a fit note can arise.
However, the company can still require the suspended employee to attend disciplinary meetings during normal working hours but if the employee provides a good reason for the request to suspend the meeting then at least one occasion the company would be expected to abide.
The company can proceed with a hearing in the employee’s absence only if it is reasonable to do so and the employee must be warned that the hearing will go ahead regardless of their attendance.
The situation is more complex when the employee is requesting to postpone the meeting due to ill health. In these circumstances, it needs to be made clear to the employee, their absence does not change the fact that he or she remains suspended pending a disciplinary investigation.
If the absence is likely to be for a long period of time, the company should attempt to clarify the situation. Being unfit for work does not mean the employee is unfit to participate in a disciplinary. The company can ask the employee, their GP/occupational health advisor (with permission) whether they can attend a meeting. The company could also look to make reasonable adjustments to the normal process such as allowing the employee to provide written submissions rather than attending in person.
If the employee is unable to engage in anyway, the company must determine whether or not it is necessary to continue in the absence of the employee. If the alleged misconduct is sufficiently serious, or if the company feels that 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 Joey Barton, his reported salary would have cost Rangers in the region of £120,000 during his suspension. Combined with the management time and effort involved in a disciplinary process, or even a portion of it, this cost may have been better spent on focusing on an agreement at an early stage, rather than keeping the employee away from work.