The Employment Appeal Tribunal (EAT) has held that an employer’s refusal to postpone a disciplinary hearing due to the unavailability of the employee’s trade union representative rendered the employee’s subsequent dismissal in her absence unfair.

Right to be accompanied

Workers have a statutory right to be accompanied at disciplinary hearings by either a work colleague or their trade union representative. 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.

Factual background

The employee, S, who had 21 years’ unblemished service, was alleged to have sent unprofessional emails to a work contact. S was initially invited to a disciplinary hearing on 5 September, but this was postponed due to sickness and annual leave. S’s trade union representative could not make the rescheduled date of 29 September, but gave alternative availability for seven working days later. The employer refused to postpone the hearing any further on the basis that the newly proposed date was not within five working days of the originally proposed date. S informed the employer that she would not attend the hearing without her chosen companion and the employer proceeded to dismiss S in her absence.

Was the dismissal unfair?

S brought an unfair dismissal claim and the employment tribunal held that although her 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 arguing 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 S’s trade union representative to attend. The proposed postponement was a short one, being only two working days more than the statutory right envisaged. The employer had been unduly hasty in not accommodating such a short delay to enable S to be represented by her chosen companion. Although the employer’s decision to refuse to postpone the hearing did not place it in breach of the right to be accompanied, this did not act as a fetter to the tribunal finding that S’s dismissal was nevertheless unfair because of that refusal to postpone.

Does this mean that you should always postpone a disciplinary hearing if the employee’s chosen companion is unavailable? No, the tribunal noted that: ‘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.’ However, this was not such a case.