"Mental Capacity Act in relation to fitness to attend a disciplinary: OH is sometimes asked to give an opinion as to whether the employee is fit to attend an investigation or disciplinary hearing. The employee may be suffering from stress related or depressive symptoms; in these circumstances it is likely that the effects of an unresolved dispute on the employee’s mental health may be greater if the proceedings are postponed. An employee may be unfit for work but fit to engage with the management process.

The OHA will have to assess whether attendance is likely to cause serious deterioration in the employee’s mental or physical health for example if there is a significant risk of suicide.

The following questions may be used to determine fitness to attend a disciplinary meeting, or engage with the management process leading to such a meeting:

·         Does the employee have the ability to understand the allegations made against them?

·         Does the employee have the ability to distinguish right from wrong?

·         Is the employee able to instruct a friend or representative to represent their interests?

·         Does the employee have the ability to understand and follow the proceedings, if necessary with extra time and a written explanation?

In my opinion, ‘X’ is fit to attend the hearing / disciplinary furthermore it is likely that the effects of the unresolved dispute may be greater if the proceedings are postponed.

It may be helpful if the meeting could be held away from work, at a ‘neutral’ location such as a hotel to avoid unnecessary anxiety about coming into the workplace at this stage