Hello, if an employer is concerned about the legitimacy of an employee's absence and believes that they may not be truthful about their illness or the reasons for being absent, they are able to investigate this further. The employer could ask for further evidence to support the existing reasons for your absence, or they could conduct their own investigation.
In order to justify that disciplinary action was fair, the law requires that the employer:
- Conducts a reasonable investigation;
- Follows a fair disciplinary procedure; and
- Shows they had reasonable grounds to believe the employee was guilty.
I will discuss these requirements in more detail below:
1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and what resources are available to the employer. An employer is only expected to go as far as is reasonably practicable in the circumstances and they would not be expected to conduct a forensically detailed investigation.
2. Disciplinary hearing - if the investigation provides evidence that misconduct may have occurred, the employee should be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them. They have the statutory right to be accompanied at the hearing but only by a trade union representative or a colleague. At the hearing the employee must be given the opportunity to defend the allegations.
3. Decision - if, as a result of the investigation and the disciplinary hearing, the employer holds a genuine belief that the employee was guilty, then they can go ahead and formally sanction the employee. When deciding on the appropriate penalty, the employer should consider the employee's length of service and disciplinary record. Therefore, longer service and a clean disciplinary record should result in the employer giving more thought into deciding what action to take.
4. Penalty - unless the offence was one of gross misconduct (something so serious that it justifies instant dismissal), the ACAS Code of Practice recommends that the employee should be issued with a warning. If any further misconduct occurs in the future, only then should dismissal be considered.
In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.
You have the legal right to appeal the warning and provide any evidence that supports your case, such as further medical evidence, a report from your doctor, etc. If you are off sick it does not mean that you have to be confined to your home and not have a life, but at the same time you have to consider what the employer saw and how that may appear from their perspective. The key is whether they investigated this as far as they could or just went ahead with the disciplinary without even considering any further evidence you had in relation to this.