Misconduct allegations and employee wellbeing: finding the right balance
Employers frequently face situations where concerns about an employee’s conduct arise and a disciplinary process is commenced, only for the employee to go on sick leave and raise concerns about stress, burnout, bullying, workload, or their mental health. In some cases, medical information is provided suggesting the employee is unfit to participate in workplace processes, while in others the position is less clear.
This can leave employers in a difficult position. Should the disciplinary process be paused? Can it continue in a modified form? How long can an employer reasonably wait before progressing the matter? And what happens if the employee’s absence becomes prolonged and concerns about incapacity emerge alongside the unresolved disciplinary issues?
These situations can be challenging to navigate. While employers are entitled to investigate and address legitimate misconduct concerns, they must also meet their good faith obligations, consider any relevant health and safety issues, and ensure the employee has a reasonable opportunity to participate in the process. Striking the right balance is critical and requires a careful approach to ensure the disciplinary process remains fair and reasonable.
A careful balancing exercise
An employee raising health concerns does not automatically prevent an employer from addressing misconduct issues. Equally, an employer should exercise caution before progressing a disciplinary process without first understanding the nature and potential effect of the concerns raised. For example, an employee may:
- Provide a medical certificate stating that they are unfit for work;
- Raise concerns about excessive workload, fatigue, or workplace stress;
- Allege bullying, interpersonal conflict, or inadequate support; or
- Claim that health issues or workplace factors contributed to the conduct in question.
These matters will not necessarily excuse misconduct, but they may provide relevant context in several ways. The key question is not whether the disciplinary process must stop altogether, but whether factors contributed to the situation and/or whether the concerns raised require separate investigation or other action. The conduct issue should not be viewed in isolation.
Delay the process or continue?
Employers should consider whether the employee can meaningfully participate in the process and, if so, whether any adjustments are required to ensure the process remains fair and reasonable.
A medical certificate stating that an employee is unfit for work does not necessarily mean they are unable to participate in a workplace process. Equally, employers should not assume that an employee on sick leave is capable of engaging in meetings, reviewing allegations, or responding to concerns. The focus should be on the employee’s capacity to participate, rather than simply their fitness for work. Depending on the circumstances, an employer may need to:
- Seek clarification about the employee’s ability to participate;
- Request further medical information, with the employee’s consent;
- Allow the employee to respond in writing or provide additional time; or
- Adjust the process through shorter or remote meetings, breaks, or additional support.
There is no automatic requirement to pause a disciplinary process because an employee is unwell. In some cases, a short pause to the process may be appropriate to allow an employee to recover. In others, an employer may reasonably decide that the process can continue with appropriate accommodations. Factors that may be relevant include:
- The seriousness of the allegations;
- The nature of the health concerns raised;
- The medical information available;
- The likely duration of any delay;
- Whether alternative arrangements would allow participation; and
- The potential impact on other employees and the workplace.
Ultimately if challenged, the employer should be able to show that it considered the employee’s circumstances, sought appropriate information, genuinely considered reasonable alternatives, and reached a considered decision about whether the process could fairly continue.
Key takeaways
Concerns about workload, stress, fatigue, bullying, or psychological harm should not be disregarded because disciplinary issues are also being considered.
The employer may seek reasonable clarification. However, it should not assume that the illness is not genuine merely because the employee can undertake other activities – a person may be unfit for work or a formal meeting while still being capable of limited day-to-day activities.
Before deciding how to proceed, and whether the employee can meaningfully participate in the process, employers should consider the available medical information, the employee’s capacity to participate, any reasonable adjustments that may assist, and whether the concerns raised require separate investigation or support. Employers should remain open to the employee’s explanation and avoid reaching conclusions before the process is complete.
In some cases, a temporary pause may be appropriate. In others, the disciplinary process can continue with appropriate accommodations in place. However, employers should be cautious about placing disciplinary matters on hold indefinitely. Where an employee is unable to participate or return to work for a prolonged period, a separate incapacity process may need to be considered.
Ultimately, employers who obtain appropriate information, genuinely consider the employee’s circumstances, explore reasonable alternatives, and clearly document their decision-making will be better placed to ensure that any process remains fair and reasonable.
If you would like advice on disciplinary processes, workplace investigations, incapacity matters or broader employment issues, contact a member of our employment team.
Special thanks to Partner Alastair Espie and Associate Kitty Chan for preparing this article.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
