Refusal to postpone disciplinary hearing may make a dismissal unfair

Talon Engineering Ltd v Smith

A refusal to postpone a disciplinary because of the unavailability of the worker’s chosen companion may make a dismissal unfair.

Section 10 of the Employment Relations Act 1999 gives workers the right to be accompanied by a fellow worker or union official to all meetings that may result in disciplinary sanctions. If the worker’s companion is unable to attend the disciplinary meeting, the employee can ask for the meeting to be postponed. The employer must agree if the alternative time requested is reasonable and within five working days after the date originally proposed.

Background

Mrs Smith sent an email to a customer (which she later tried to delete) referring to a colleague using insulting language. She was suspended on 29 July and invited to a disciplinary hearing on 5 September. This was postponed due to sickness and annual leave and rescheduled to 29 September. Mrs Smith wanted to be represented by her union representative. He emailed her stating he couldn’t represent her that week and his earliest availability would be just under two weeks later. The employer refused Mrs Smith’s request to postpone the disciplinary further, saying they had the right to reject the request because the union representative could not attend within five days of the date set. Mrs Smith responded that she would not attend the meeting without her chosen union representative. The employer continued in her absence and decided to summarily dismiss her. Mrs Smith appealed but the decision was upheld. She claimed unfair dismissal.

A tribunal held that although her employer had shown a potentially fair reason for dismissal, its decision to dismiss was procedurally unfair because of its refusal to postpone the already once postponed disciplinary hearing to enable Mrs Smith to be represented by her union official:

‘It goes without saying that it is far preferable if an employee such as Mrs Smith attends her disciplinary hearing. It is her opportunity to put her case to the decision maker. All reasonable steps should be taken in order to ensure she can do so. There will be cases where it is reasonable to proceed in the absence of the employee, for example where she is being difficult or trying to inconvenience her employer. There will also, no doubt, 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. Put shortly, none of those situations applied here. There had been no sort of misbehaviour on the part of Mrs Smith, proceedings had not been on foot for a particularly lengthy period and the further delay that would have ensured her attendance was a short one ... no reasonable employer would have refused a further short postponement and gone ahead in the absence of Mrs Smith.’

The employer appealed, arguing that the tribunal had failed to have regard to s.10 of the Employment Relations Act.

EAT decision

The EAT dismissed the appeal.

It rejected the s. 10 argument - this was an unfair dismissal complaint brought under s. 98 of the Employment Rights Act and no breach of the right to accompaniment duty was being alleged. Whilst a breach of the s. 10 accompaniment right at a disciplinary meeting which results in the dismissal of an employee could well, and perhaps almost always will, result in a finding of unfair dismissal for an eligible employee, the corollary cannot be right.

The EAT endorsed the tribunal’s view that it was unreasonable for the employer not to postpone the hearing after Mrs Smith had returned from annual leave for a short period of time and that the employer’s response fell outside the range of reasonable responses and the dismissal was unfair.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0236_17_2003.html

Comment

The analogy here is allowing an employee to be accompanied at a redundancy hearing. The ACAS Code of Practice does not apply to redundancy dismissals and the Employment Relations Act does not apply as it is not a disciplinary or grievance hearing. Some employers believe that because of this, they can deny an employee the right to be accompanied at a redundancy consultation meeting. However, denying an employee the opportunity of being accompanied at the consultation meeting will almost certainly lead to a finding of unfair dismissal. Ultimately it is for the tribunal, in accordance with s. 98(4) of the Employment Rights Act to look at overall fairness. The tribunal did make a distinction for those employees who are clearly trying to prolong matters unnecessarily or acting in bad faith, and situations where the process has been going on too long. However, it found that this did not apply in these circumstances.