Case update (2): Unfair dismissal – Failure to postpone

Summary:   Did an employer’s refusal to postpone a disciplinary hearing, due to the unavailability of the employee’s trade union representative, make the dismissal unfair?

Yes, says the EAT in Talon Engineering Limited v Smith available here.

Background:  Workers have a statutory right to be accompanied at disciplinary hearings by either a work colleague or their trade union representative under section 10 Employment Relations Act 1999. Workers can propose an alternative date for the hearing if their chosen companion is unavailable. Provided the alternative time proposed by the worker is reasonable, and within five working days of the originally proposed date, the employer must postpone the meeting.

Facts:  The employee, Mrs Smith, was employed by Talon Engineering Ltd, the employer, for over 21 years before her summary dismissal for gross misconduct. She had been invited to a disciplinary hearing, which was then postponed for three weeks as a result of a period of sick leave followed by annual leave. The rescheduled hearing was due to take place on 29 September 2016, but Mrs Smith’s trade union representative was unavailable on that date and for a further two weeks. The employer refused a further request to postpone the hearing, on the basis that it would result in an unacceptable delay and that it was only required to agree to a postponement of up to five days under the provisions of section 10(5) Employment Relations Act 1999 (right to be accompanied to a disciplinary hearing).

The disciplinary hearing went ahead in the absence of both the employee and her trade union representative, and the decision was reached to summarily dismiss her. This decision was upheld on appeal.

Mrs Smith brought a Tribunal claim for unfair dismissal. The Tribunal upheld her claim.  It decided that although the employer had shown a potentially fair reason for her dismissal, its decision to dismiss her was procedurally unfair because of its refusal to postpone the disciplinary hearing.

The employer appealed to the EAT.  It argued that, under the right to be accompanied rules, it did not have to accept a postponement which was more than five working days after the original date.

The EAT dismissed the employer’s appeal and endorsed the Tribunal’s view that no reasonable employer would have refused to postpone the hearing to allow Mrs Smith’s trade union representative to attend. The employer had been unduly hasty in not accommodating a short delay to enable Mrs Smith to be represented by her chosen companion.

The unavailability of the trade union representative for a period of more than five working days does not mean, for the purposes of a claim of unfair dismissal, that an employer is entitled to proceed with the disciplinary hearing in the absence of the employee. The Tribunal was entitled to conclude that it was unreasonable for the employer not to postpone the hearing for a further short period of time. The provisions of section 10 Employment Rights Act 1999 do not prevent a Tribunal from using its discretion to reach a finding that a dismissal was unfair.

Implications:

Employers should take care when deciding whether to postpone a disciplinary hearing. This decision highlights the risk in proceeding with a disciplinary hearing in circumstances where an individual’s chosen representative is not available, even if this is for more than the five days permitted by law. Whilst a decision to proceed will mean there is no breach of the statutory right to be accompanied, a decision to dismiss may still be regarded as unfair. Employers should always consider a request for a postponement of a disciplinary hearing on its merits, even if it is for a period of more than five days.

There will be cases where it is reasonable to proceed in the absence of the employee, for example where the employee is being difficult or trying to inconvenience the employer.   However, in this case, the Tribunal considered dismissal in the employee’s absence to be a gross overreaction by the employer, particularly in view of the employee’s length of service and previously unblemished record.