Dismissal Unfair following Refusal to Postpone Disciplinary Hearing

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Employees have a statutory right to be accompanied by a work colleague or an accredited Trade Union representative to all meetings that could result in a disciplinary sanction. If the companion is unable to attend on the date of the hearing, the employer must agree if the alternative time suggested is reasonable and within five days of the original date.

In Talon Engineering Ltd v Smith, Mrs Smith was facing disciplinary proceedings as a result of sending an inappropriate email to a customer in which she called an unnamed colleague a “knob head” and “knob”. She then attempted to delete the email to hide her actions.

She was suspended and invited to a disciplinary hearing which was subsequently postponed because of sickness and holiday. She wanted to be accompanied by her Trade Union representative who emailed to say he was not able to accompany her that week and would not be available for just under two weeks.

Talon Engineering refused to postpone the hearing further insisting they had the right to refuse because the union representative was unable to attend within five days of the set date.

Mrs Smith refused to attend the meeting without her Union Representative and so Talon Engineering went ahead with the hearing in her absence. The outcome was that Mrs Smith should be summarily dismissed. She appealed against this decision but the original decision was upheld.

Mrs Smith raised a claim for unfair dismissal with the Employment Tribunal who considered that as there had been no sort of misbehaviour on the part of the employee and the delay was only a short one, “no reasonable employer would have refused a further short postponement and gone ahead in the absence of Mrs Smith”. As a result, the dismissal was procedurally unfair.

Talon Engineering appealed stating that the employee was entitled to request an alternative date within five days and they had not breached that. The Employment Appeal Tribunal disagreed, concluding that the claim against the Company was for unfair dismissal, not a breach of the accompaniment rights stating: “The Tribunal was entitled to conclude that it was unreasonable for the Respondent (employer) not to postpone the hearing after the Claimant (employee) had returned from annual leave for a short period of time and that the Respondent’s response fell outside the range of reasonable responses available to an employer and the dismissal was unfair.”

It’s all about being reasonable!

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