For Roger (IB3 at pp62-3)
If a manager accused a worker of stealing £50, and the worker refused to attend a disciplinary hearing, would the hearing go ahead? Yes. They might delay on an absence support by a doctor’s note, but if the worker continued not to attend ultimately the hearing would go ahead in the worker’s absence. How would the employer treat the worker’s absence? As an admission of guilt. They had a chance to prove themselves, they had not taken it. Their action speaks for itself.
If a worker accused a manager of harassing her, and the manager refused to attend a disciplinary hearing, would the hearing go ahead? Yes. How would the employer treat the manager’s absence? They would, in all likelihood, listen carefully to the reason for the absence (and probably more carefully than if a mere worker was absent). If it was sickness, for example, or stress, they might delay the hearing to accommodate the manager. There might not be quite so strong an insistence on the manager providing medical evidence. If the manager consistently refused to attend, the hearing would go ahead, and if those hearing the case believed the person making the complaint, they would treat the case as (for the employer’s purposes) proved, and take disciplinary action against the manager.
What if the manager had resigned in the interim? The employer would still need to make findings. After all, if the manager had harassed a more junior employee, during his work duties, and then relied on his seniority in the workplace to harass her a second or a third time, the employer would owe her a very significant apology. It would have had failed in its duties to her. And the employer would only know this for certain if it had decided whether her complaint was true or not.
In a trade union, if a member complained that another member had bullied her, would the hearing go ahead? Yes. How would the adjudicator treat the member’s absence? Either as an admission of guilt or neutrally, but it would not stop the adjudicator reaching a final decision in the case.
In a disciplinary body (e.g. the Nursing and Midwifery Council), if there was a complaint against a worker and the worker did not attend, would the hearing go ahead? Yes. Would it go ahead if the person concerned had resigned from their main employment? Yes. How would the adjudicators treat the member’s absence? Either as an admission of guilt or neutrally, but they would make a final decision.
At the Employment Tribunal would the hearing go ahead in the absence of one of the two parties? Yes. There are occasions on the Tribunal would adjourn, but essentially only if there was medical evidence or some other compelling reason to do so. How would the Tribunal treat the party’s absence? The Tribunal would look at the evidence before it and make a decision as to which version it found compelling. I have heard of cases where one party was present, another party absent, and the present party still lost. For example, because the case as they put it did not satisfy the requirements of legislation. But in the large majority of cases (99%), those present win. They have provided their evidence, the other side has not. All other things being equal, a detailed, believable case which is not resisted on any apparent basis should normally win.
In the family court system, would the hearing go ahead in the absence of one of the two parties? Yes, this happens all the time with allegations of rape, domestic violence, etc. The hearings tend to be very short, and in my experience the Judges treat the party’s absence as a clear admission that they have lied in making an allegation or did the rape, domestic violence, etc of which they are accused.
In the Magistrates’ Court, if a person was accused of harassment and did not attend court, what would happen? A warrant would be issued for their arrest. If they were still not in court on the second or third occasion, the trial would take place in their absence, and they would be convicted.
Would any of these decision-makers hold back and insist that they could not reach a final decision unless the person subject to the complaint chose to attend? No, not a single one of them would hold back; all would make the final decision.
Would any of them say that their decision was provisional? None of them would.
Would it make a difference to the employer, or the union, or the disciplinary body, or to the Tribunal or to a district judge if the complaint was very serious? Would they say natural justice holds us back from making a final decision? Would they say, we can only decide that the person has a “case to answer”?
None of these decision makers, informal (employer) or formal (courts) would limit themselves to a finding of “no case to answer”. If the case was serious, they might give the person who was subject to the complaint further opportunities to attend. But if the person had had opportunities, and did not attend, each would have to make a decision about what they believed had happened.
As an employer you can’t “half” sack somebody, as a professional body, you can’t decide that they are “half” unfit to do their job. If someone does not attend, a decision still has to be made. Justice and the authority of the manager, the union or the Judge, both depend on the decision-making actually making decisions.