Ms Smith who had worked for the employer from 1994 to 2016, was found to have sent a series of emails to a customer using insulting and offensive language to describe a colleague. Smith was suspended and invited to a disciplinary hearing, however this initial hearing had to be postponed due to sickness and her being on annual leave.
After returning from leave Smith was invited to another disciplinary hearing. However, her trade union representative could not attend on this date and she asked to postpone for a further 2 weeks. The employer denied this request, saying they had the right to reject the request because the union rep couldn’t attend within 5 days, and proceeded to hold the meeting which Smith did not attend. The employer made the decision to dismiss Smith in her absence and she proceeded to bring a claim for unfair dismissal.
The employment tribunal (ET) were tasked with determining whether the dismissal was unfair as Smith was not afforded the opportunity to postpone the disciplinary hearing so that the union representative could attend.
The ET held that although the employer had shown a potentially fair reason for dismissal, their decision to dismiss was procedurally unfair.
They added “There will be cases where it is reasonable to proceed in the absence of the employee, for example where she is being difficult in trying to inconvenience her employer…or where proceedings have gone on for long enough and a decision must be taken. None of those situations applied here”.
The ET concluded 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.
The employer appealed this decision with the Employment Appeal Tribunal (EAT), and claimed that they had not breached section 10 of the Employment Relations Act 1999, which states that an alternative time for postponed hearings to accommodate the availability of a companion must be “reasonable and fall before the end of the period of five working days”.
However, the EAT rejected this argument because Smith’s claim was for unfair dismissal brought under section 98 of the Employment Rights Act 1996 for an unreasonable refusal to postpone a disciplinary hearing, not 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, rendering the subsequent dismissal unfair.
If an employee being disciplined asks for a postponement of a disciplinary hearing because their representative is unable to attend, employers should not just restrict this to just five days. Instead, they should act reasonably in those circumstances as a failure to do so could render any dismissal unfair on procedural grounds.
Employers should remember the guidelines on the right to a companion in disciplinary meetings. They have very little opportunity to refuse a particular companion, even if the companion is at a distant geographical location or would present a conflict of interest.