In Talon Engineering Limited v Smith the EAT held that an employee had been unfairly dismissed when her employer refused to postpone a disciplinary hearing for a short period of time to enable her trade union official to accompany her.  Although the employer had complied with the rules governing the right to be accompanied to a hearing, this did not automatically mean that the dismissal was procedurally fair.

Background law

In order for a dismissal to be found fair, an employer must be able to provide a fair reason for the dismissal, demonstrate that they were acting reasonably when they made the dismissal and show that they followed a fair process prior to the dismissal.  

Section 10 of the Employment Relations Act 1999 governs the right to be accompanied to disciplinary and grievance hearings.  It obliges employers to agree to postpone a hearing to accommodate the employee's chosen companion, provided that the alternative time proposed is reasonable and within 5 working days of the original date.

Facts

The Claimant had been employed by the employer for 22 years until her summary dismissal in 2016.  The Claimant sent emails to a company contact referring to an unnamed colleague in a derogatory manner and was ultimately dismissed on misconduct grounds.

Throughout her disciplinary proceedings, the Claimant had intended to be represented by her trade union official. Her initial disciplinary hearing was delayed due to the Claimant's sickness absence and a period of annual leave. When invited to a rescheduled disciplinary hearing, the Claimant's trade union official emailed to explain that he was unavailable on the date specified and provided three alternative dates when he could attend. These dates were just under two weeks later than the suggested rescheduled disciplinary hearing date.

The employer refused to postpone the hearing, explaining that a further delay would add strain to the Claimant and the staff covering her work. It also asserted that it was entitled to reject the request because the alternative dates provided were not within 5 working days of the date they had proposed.  The Claimant was not prepared to attend the hearing without her union official and so the employer proceeded in her absence and decided to summarily dismiss her. Her internal appeal was dismissed.

Employment Tribunal decision

The Tribunal found that the failure to postpone the disciplinary hearing rendered the dismissal unfair.  It concluded that no reasonable employer would have dismissed based on the facts of the case.  The employer appealed to the EAT arguing that the Tribunal had fallen into the substitution mind-set and failed to take into account the limited obligation to postpone a hearing set out in section 10 of the Employment Relations Act 1999. 

EAT decision 

The EAT dismissed the appeal. It concluded that the Tribunal had correctly considered the statutory test for unfair dismissal when deciding whether or not it was reasonable to dismiss.  It had been entitled to find that although there was a potentially fair reason for dismissal, the employer had been unreasonable in refusing to postpone the disciplinary hearing for a further short period of time. This fell outside the range of reasonable responses. The EAT also determined that by referring to a reasonable employer in their decision, the Tribunal had not assessed matters by reference to their own views and had not fallen into a substitution mind-set.

Further, the Tribunal had not erred by failing to refer to section 10 of the Employment Relations Act 1999.  It was sensible not to have made any reference to it since that may have conflated two different statutory provisions.  The question before the Tribunal was whether the employer had effected a fair dismissal, not whether it had complied with the rules governing the right to be accompanied.

Comment

This decision is a reminder to employers of the need to act reasonably when considering whether or not to postpone a disciplinary meeting to accommodate a companion, even if the employee requests that the hearing is postponed for more than 5 working days.  If a request to postpone a hearing is received, consider the time frame of the postponement and whether it is reasonable to deny the request. It may well be reasonable to refuse a request where it is necessary to progress matters within a certain time frame or you have reasonable grounds for believing that the employee is acting in bad faith. 

Talon Engineering Ltd v Smith

This article was drafted by Natalie McManus, Associate