The Employment Appeal Tribunal (EAT) has considered whether an employer’s refusal to postpone a disciplinary hearing, due to the unavailability of the employee’s trade union representative, resulted in an unfair dismissal.

Talon Engineering Limited v Smith, UKEAT/0236/17

Facts

The employee, Mrs Smith, was employed by the respondent 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 respondent 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 claim for unfair dismissal, which was upheld by an employment tribunal. The tribunal was satisfied that it was not reasonable in the circumstances to proceed with the disciplinary hearing in her absence. The employer should have allowed a further postponement of the hearing to allow Mrs Smith’s trade union representative to accompany her. The employer appealed to the EAT.

EAT decision

The EAT dismissed the employer’s appeal, upholding the finding of unfair dismissal. In relation to the right to be accompanied, the EAT confirmed that whilst a breach of the right under section 10 would almost certainly result in a finding of unfair dismissal, the corollary of that cannot be right. 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 respondent not to postpone the hearing for a further short period of time. The provisions of section 10 Employment Rights Act 1999 should not act as a fetter on the tribunal’s discretion to reach a finding that a dismissal was unfair.

Consequences

This decision highlights the potential risk for employers in electing to proceed 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 under section 10 Employment Relations Act 1999. Whilst a decision to proceed will mean there is no breach of the statutory right to be accompanied provisions, a decision to dismiss may still be regarded as unfair. In this case, the tribunal considered dismissal in the employee’s absence to be a gross overreaction on the part of the respondent, particularly in view of her length of service, and her previously unblemished record. 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.