Mrs Smith had worked for Talon Engineering for 21 years. Whilst at work, she sent an email to one of their customers which referred to one of her colleagues with some rather unsavoury language. Once discovered, she was suspended and invited to an investigation meeting, which recommended that the matter proceeded to a disciplinary hearing.
Under section 10(4)-(5) of the Employment ReIations Act 1999 there are specific rules regarding adjourning a disciplinary hearing because an employee’s companion is unavailable. Where an employee's chosen companion is unavailable at the time proposed for the hearing by the employer, the employee has the right to suggest an alternative time which is not more than five working days later. If that time is reasonable the employer must rearrange the hearing for that time.
From the start of the disciplinary process, Mrs Smith made it clear that she wished to be accompanied by a trade union representative in any disciplinary meetings. The first disciplinary hearing was delayed by a period of 3 weeks due to a combination of Mrs Smith being ill and being on annual leave. Once rearranged, her trade union representative let her know that he was unavailable on the week of the hearing and that he would not be available for a further 2 weeks. This was relayed to Talon Engineering, but they decided that they would proceed regardless. Mrs Smith refused to attend without her representative, and the hearing was held in her absence and Mrs Smith was summarily dismissed for gross misconduct. She appealed the decision, but the appeal was not upheld.
Mrs Smith proceeded to bring a claim for unfair dismissal. At the ET, they found that the decision to dismiss her was unfair due to the refusal to postpone so that Mrs Smith could be represented by a trade union official. It further stated that it was far more preferable to have an employee attend the disciplinary hearing because this gives the opportunity to put a case to the decision maker. All reasonable steps should be taken to ensure this. Sometimes it can be reasonable to proceed in the employee’s absence, but this was not a case of bad faith or an attempt to inconvenience the employer and so the decision was unfair.
On appeal to the EAT, Talon Engineering attempted to state that their decision was fair, because there was a strict time limit set by section 10(4)-(5) of the Employment Relations Act 1999 (see above) which Mrs Smith did not adhere to. The EAT upheld the tribunal's decision that the dismissal was procedurally unfair, even though the employer had a fair reason to dismiss. It found that an employer has an overarching duty in section 98(4) of the Employment Rights Act 1996 to act reasonably and Ms Smith's employer had acted unreasonably in refusing to postpone the hearing for a short time to allow her companion to attend despite section 10(4)-(5) of the Employment Relations Act 1999. In short, the general duty of reasonableness underpinning all dismissals trumped the procedural and technical point about when to allow an adjournment of a disciplinary hearing because an employee’s companion is not available.
What does this mean for you or your business, and what should you be doing now?
This emphasises the need to follow a fair procedure when going through a disciplinary process. Consider the ACAS code and guidance for the processes. Whilst this states that employers and employees should deal with issues promptly and not unreasonably delay meetings, there is also a right to be accompanied to any formal meeting.
Consider the reasonableness of each request before making hasty decisions. In the above case, there was a genuine reason for not being able to attend. The EAT judgment provided a list of factors to consider when responding to a request to adjourn a disciplinary hearing:
- Consider the seriousness of the alleged act.
- Consider the length of service of the employee.
- Has the disciplinary been unnecessarily drawn out?
- What is the reason for the request?
- Is the adjournment length reasonable?
- Would the reasonable employer refuse the request?
- Is dismissal a possible or likely outcome?
In light of the above, it is certainly safer to err on the side of caution and not leave yourself at risk of a tribunal claim. However frustrating it may be, take the time to come to a fair and safe decision rather than pushing forward to conclude a matter for the sake of speed only.
The full judgment from the EAT can be read HERE.