Right to be Accompanied at Disciplinary Hearings

A recent Employment Appeal Tribunal (EAT) case considered whether an employer should have postponed a disciplinary hearing when the employee’s trade union official couldn’t attend the proposed date.

Employees have the right to be accompanied by a colleague or trade union official to all meetings which may result in a disciplinary sanction, for example a written warning, final written warning or dismissal. If the employees’ companion is unable to attend the meeting, the employee can ask for the meeting to be postponed. The Employment Relations Act states that employers must agree to postponing a disciplinary meeting if the alternative time requested is reasonable and within five working days after the original proposed date.

The background of the case Talon Engineering Ltd v Smith was that Mrs Smith, the employee, was facing disciplinary action after sending an inappropriate email to a customer referring to a colleague as a ‘knob head’. Due to this incident, the employee was suspended and invited to a disciplinary hearing which was postponed due to sickness and annual leave. The employee requested a further postponement of the already postponed meeting as her trade union representative was unable to attend. The earliest date he was available was in just under two weeks’ time.

As the earliest date the trade union representative would be available was beyond the five working days from the date of the original meeting, the employer refused the request. As a result, the employee responded that she would not be attending the meeting without her trade union representative, so the employer continued the meeting in her absence and decided she would be summarily dismissed. The decision was appealed by the employee, but it was upheld. Consequently, the employee lodged a claim at the Employment Tribunal for unfair dismissal.

At the Employment Tribunal it was stated that there are cases where it is reasonable to continue a disciplinary hearing in the employee’s absence, such as when they are ‘being difficult or trying to inconvenience their employer’ or where proceedings have gone on for long enough that a decision must be taken. However, these situations didn’t occur for this case and ‘no reasonable employer would have refused a further short postponement and gone ahead in the absence of Mrs Smith’. The dismissal was procedurally unfair.

The employer appealed the decision at the EAT where it was concluded that the dismissal was unfair.

The key message from this case is that if an employee who is being disciplined asks for a disciplinary hearing to be postponed because their representative cannot attend the date set, employers shouldn’t restrict the postponement to five days. Employers need to act reasonably in these circumstances as failing to do so could result in a dismissal being unfair on procedural grounds.

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