Refusal of the right to be accompanied could result in unfair dismissal

In the case of Talon Engineering Limited v Smith, the Employment Appeal Tribunal (EAT) were asked to determine whether a dismissal decision, where the employer refused to postpone the disciplinary meeting, could be considered fair.

This matter centred around the employee, Ms Smith, who had worked for the employer from 1994 to 2016. Smith was found to have sent a series of emails to a customer using insulting and offensive language to describe a colleague within the organisation. After this was discovered she was suspended before later being invited to a disciplinary hearing. However, this initial hearing had to be postponed due to a combination of Smith’s sickness and pre-arranged annual leave commitments. Smith was invited to a second hearing upon her return, however her union representative, whom she wished to accompany her, was not available for a further two weeks. Her request to postpone the meeting further was rejected by the employer, who proceeded with the hearing without Smith in attendance and decided to dismiss her.

Smith responded by bringing a claim for unfair dismissal to an employment tribunal (ET), believing that her dismissal was unfair as she was denied the opportunity to postpone the hearing to a time when her union representative was available. In their ruling the ET held that although the employer had shown a potentially fair reason for dismissal, their decision to dismiss was procedurally unfair. They stated that all reasonable steps should have been taken to allow Smith to attend her disciplinary hearing, including allowing a second postponement, and that “no reasonable employer” would have refused this request. Smith was awarded £22,257 in compensation as a result.

The employer proceeded to appeal this decision with the EAT, believing the initial tribunal had incorrectly substituted their own views on reasonableness into this matter. They also referenced the wording of s.10(5) of the Employment Relations Act 1999, which states an alternative time for postponed hearings must “be reasonable and fall before the end of the period of five working days”.
However, the EAT dismissed the employer’s appeal and in doing so rejected their argument in relation to s.10. They confirmed that Smith’s initial claim was for unfair dismissal under s.98 of the Employment Rights Act 1996 for a refusal to postpone the disciplinary meeting, rather than for any breach of the right to be accompanied. The EAT concluded that the ET were correct to find that the employer was hasty and unreasonable in their actions and that the subsequent dismissal was unfair.

This outlines the importance of allowing employees to reasonably postpone their disciplinary hearings, particularly where this is to accommodate a period of ill health, pre-arranged annual leave or trade union involvement. Furthermore, even in instances where the decision to dismiss is for potentially valid reasons employers must always ensure a fair procedure is followed to avoid claims of unfair dismissal.