Disciplinary hearings and absent companions – to postpone or not postpone?
We have previously covered an employee’s right to be accompanied by a colleague or trade union rep at a disciplinary or grievance hearing. As we explained in our previous article, if an employer fails to allow an employee to exercise this right, the employee could bring a claim for breach of the right, or a claim that they have been subjected to a detriment or dismissed because they have exercised or sought to exercise their right to be accompanied. Unless the employee has suffered particular detriment over and above not having a companion at the hearing, they should only be awarded nominal compensation, such as £2.
A recent case (Talon Engineering Ltd v Mrs V Smith) has, however, highlighted that there are more significant consequences for employers to consider if an employee cannot attend a hearing because their companion is unavailable.
Mrs Smith worked for a motorcycle manufacturer, Talon Engineering (“Talon”). Mrs Smith sent emails which were highly critical of her colleagues to an employee of an external company that had dealings with Talon (she had referred to an unnamed colleague as a “knob head”).
The disciplinary hearing
Following an investigation, Mrs Smith was called to a disciplinary hearing. The hearing was postponed as Mrs Smith was off sick. The hearing was rescheduled, but Mrs Smith’s trade union rep was not available. The rep suggested several alternative dates (the first of which was within 2 weeks), however Talon were not prepared to delay the hearing and so it went ahead in Mrs Smith’s absence. Mrs Smith was found to have committed gross misconduct and was summarily dismissed. She appealed and her appeal was rejected. Mrs Smith brought a claim in the Employment Tribunal for unfair dismissal.
The Employment Tribunal decision
The ET found that Talon had a potentially fair reason for dismissing Mrs Smith i.e. conduct, but concluded that no reasonable employer would have refused a further short postponement of the disciplinary hearing and gone ahead in her absence. There was no misbehaviour on the part of Mrs Smith, and things had not gone on for a particularly lengthy time. The further delay to ensure Mrs Smith’s attendance would have been a short one.
The ET also held that the appeal did not rectify the shortcoming of Mrs Smith being denied, improperly, the chance to have her side of the case heard at the disciplinary hearing.
Contributory fault
Mrs Smith’s dismissal was held by the ET to be unfair. Both her basic and compensatory awards were, however, reduced by 15% as she was found to have contributed to her own dismissal by her actions. The compensatory award was reduced by a further 15% to reflect the likelihood that she would have been fairly dismissed had a fair procedure been followed.
The Employment Appeal Tribunal decision
Talon appealed to the EAT, however the EAT upheld the finding of unfair dismissal.
The EAT also considered the right to be accompanied under section 10 of the ERA 1996, which says that the employer must postpone the hearing to allow the employee’s chosen companion to attend, if the proposed alternative is within 5 working days.
The EAT found that Talon appeared to believe that because Mrs Smith’s union rep suggested dates which did not fall within 5 working days, they were not obliged to reschedule the hearing. The EAT highlighted that the right to be accompanied and the law on unfair dismissal are “two quite different statutory provisions”. If Mrs Smith’s claim were for a breach of the right to be accompanied, then Talon could not be criticised for failing to reschedule the hearing given the union rep’s inability to attend a reconvened hearing within 5 working days. However, in a claim for unfair dismissal, the ET was entitled to find that it was unreasonable of Talon not to postpone the hearing in the circumstances.
We can help with advice on disciplinary proceedings and appeals, and we are also able to assist with handling such matters where appropriate. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).