The law states that employees are entitled to be accompanied to a disciplinary hearing and to bring claims for unfair dismissal (after two years). In Talon Engineering Ltd v Smith, the Employment Appeal Tribunal (EAT) held that an employee was unfairly dismissed when the employer refused to postpone a disciplinary hearing by ten days even though this was not a breach of the right to be accompanied.
Ms Smith, who had worked for Talon Engineering since 1994, sent a series of emails to a contact in a company with whom Talon traded in which she referred to an unnamed colleague in unflattering terms. She then tried to delete the emails but the company retrieved them.
After being suspended for a month, she was invited to a disciplinary hearing which was postponed because she was sick and was then on holiday. She was invited to a rescheduled hearing ten days later, but her union official could not attend as he was away at a conference in London all that week. He provided his earliest available dates which were just under two weeks later. The company refused to postpone the hearing because the union official could not attend within five days of the suggested date.
Ms Smith refused to attend without her chosen representative and the hearing went ahead in her absence. She was summarily dismissed for gross misconduct by letter dated the day after the hearing.
The tribunal held that no reasonable employer would take the view that what Ms Smith had done warranted dismissal, particularly given her long service. It therefore held the dismissal to be unfair. In terms of compensation, this was reduced by 15 per cent for contributory conduct and a further 15 per cent to reflect the likelihood that she would have been dismissed if the employer had followed a fair procedure.
The employer challenged the finding that it was unreasonable not to have postponed the hearing, claiming instead that the tribunal had substituted its own view. It also challenged the finding that Ms Smith was entitled not to attend the hearing in the absence of her chosen representative taking into account section 10(5) of the Employment Relations Act 1999. This provides that where a hearing is postponed to allow a representative to attend an alternative time must “be reasonable and fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer”.
The EAT rejected the “substitution” argument holding that the tribunal had been “punctilious” in its approach as to how a reasonable employer would have behaved and in coming to its conclusion that after 21 years’ service the company was “unduly hasty” in not allowing a further short delay to allow Ms Smith to be represented.
It also rejected the section 10 argument on the basis that Ms Smith’s claim was for unfair dismissal, not for breach of the right to be accompanied. As such, the tribunal was right to rely on the statutory test under section 98(4) of the Employment Rights Act which hinges on whether the employer had acted reasonably in the circumstances in dismissing the employee.
It agreed with the tribunal that the company was unreasonable in its refusal to postpone the hearing after Ms Smith had returned from annual leave for a short period of time. The company’s response therefore fell outside the range of reasonable responses available to an employer and the dismissal was unfair.
The case does not mean that an employer will always act unreasonably where they fail to postpone a disciplinary hearing but where, as in this case, the adjournment is short the employer should not be too hasty in refusing it even where this is more than the five days provided for under the right to be accompanied.