EAT CASE | Right to be accompanied

An Employment Appeal Tribunal (EAT) case has considered whether an employer should have postponed a disciplinary hearing.

This was to allow the employee to bring her union representative when the requested postponement was beyond the five days laid down in the Employment Relations Act. 

Workers have the right to be accompanied by a fellow worker or trade union official to all meetings that may result in disciplinary sanctions. Disciplinary sanctions could range from a written warning, final warning, dismissal or other types of action short of dismissal, such as demotion.

If the worker’s companion is unable to attend the disciplinary meeting, the employee can ask for the meeting to be postponed. The employer must agree if the alternative time requested is reasonable and within five working days after the date originally proposed.

What are the facts of the case?

In Talon Engineering Ltd v Smith, the employee, Mrs Smith, faced disciplinary proceedings for sending an inappropriate email to a customer, calling an unnamed colleague a ‘knob head’ and ‘knob’. She then tried to delete some of those emails to conceal her actions.

Mrs Smith was suspended and invited to a disciplinary hearing. This was postponed due to sickness and annual leave but was rescheduled to 29th September. The employee wanted to be represented by her trade union representative. Her representative sent an email stating he was unable to represent her that week and his earliest availability would be just under two weeks later.

The employer refused the request to postpone it further. They maintained that they had the right to reject the request because the union representative could not attend within five days of the date set.

Mrs Smith responded that she would not attend the meeting without her chosen trade union representative and as such, the employer continued in her absence. It was decided that the employee would be summarily dismissed. The employee appealed, but the decision was upheld.

She lodged a claim for unfair dismissal at an Employment Tribunal.

What did the Employment Tribunal conclude? 

The Employment Tribunal reasoned that ‘There will be cases where it is reasonable to proceed in the absence of the employee, for example where she is being difficult or trying to inconvenience her employer.  There will also, no doubt, be situations where, even without bad faith on the part of the employee, proceedings have gone on for long enough and a decision must be taken.’

They continued ‘Put shortly, none of those situations applied here. There had been no sort of misbehaviour on the part of Mrs Smith, proceedings had not been on foot for a particularly lengthy period and the further delay that would have ensured her attendance was a short one… no reasonable employer would have refused a further short postponement and gone ahead in the absence of Mrs Smith.’ Therefore, the dismissal was procedurally unfair.

What did the EAT decide?

The Employment Relations Act, which provides the right to be accompanied, states that if a trade union representative cannot attend, the employee is entitled to have the hearing postponed and to have an alternative date within five days of the hearing. The employer argued that since they were not in breach of this, it could not render the procedure unfair. The EAT disagreed and noted that the claim being made against the employer was for unfair dismissal, not a breach of the accompaniment rights.

It concluded that “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.’

What to take away

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. A failure could mean that a dismissal is unfair on procedural grounds.

Director of Legal Services

James Tamm

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