Refusal to postpone disciplinary hearing made dismissal unfair

The Employment Appeal Tribunal (EAT) ruled that an employer’s refusal to postpone a disciplinary hearing to permit the employee’s trade union representative to accompany her to the hearing made her subsequent dismissal in her absence unfair.

Background

Employees have a statutory right to be accompanied at disciplinary hearings by either a work colleague or their trade union representative. If their companion is unable to attend the hearing, the employer must agree to the employee’s request to postpone the hearing provided the employee’s proposed alternative date is within 5 working days of the original date.

In the next case, the EAT considered the relationship between two statutory rights – the right not to be unfairly dismissed and the right to be accompanied at a disciplinary hearing – and ruled that the fact that an employer had complied with the right to be accompanied does not guarantee that the procedure must have been fair.

Facts

The Claimant was suspended for referring to a colleague derogatively in an email to a customer and then trying to cover it up by deleting the e-mail.

The initial disciplinary hearing had to be postponed when the Claimant fell sick and then went on holiday. When the hearing was re-scheduled the Claimant asked for another postponement because the trade union official she wanted to accompany her would not be available for 2 weeks.

The employer refused to postpone the hearing, The Claimant said she was not prepared to attend the hearing without her union representative. The hearing went ahead in the Claimant’s absence and she was dismissed.

ET decision

The employment tribunal (ET) upheld her claim for unfair dismissal because of the employer’s refusal to postpone the disciplinary hearing to enable the Claimant to be represented by her trade union official, ruling that no reasonable employer would have refused a further short postponement of the hearing.

EAT decision

The employer appealed against the ET’s decision. One of its principal arguments was that it had not contravened the Claimant’s right to be accompanied. The right allows for a postponement for a chosen companion to attend, but only for 5 days. As the alternative hearing date proposed by the Claimant was outside that time limit, the ET had been wrong to find that the dismissal was unfair because the employer had not agreed to the postponement.

The EAT rejected the employer’s argument. It ruled that the statutory rights not to be unfairly dismissed and to be accompanied at disciplinary hearings are separate. Although the employer’s refusal to postpone the hearing did not breach  the Claimant’s right to be accompanied, the EAT endorsed the tribunal’s view that no reasonable employer would have refused to postpone the hearing for a short time to allow the Claimant’s trade union representative to attend.

Comment

Does this mean that employers should always agree to postpone a disciplinary hearing if the employee’s representative is unavailable?

Not necessarily. Even in this case the tribunal acknowledged that there will be occasions where it is reasonable to proceed in the employee’s absence, for example, where she is being difficult or trying to inconvenience her employer. There will also be situations where, even without bad faith on the part of the employee, proceedings have gone on for long enough and a decision must be taken. However, this was not such a case.

Many employers have, until now, applied the statutory 5 working days provision to reschedule a disciplinary hearing but this decision suggests that in future employers should be prepared to consider longer postponements.

Talon Engineering Ltd v Smith