12 Sep 2018

In Talon Engineering Ltd v Smith (UKEAT/0236/17) the Employment Appeal Tribunal (EAT) concluded that an employment tribunal (ET) was entitled to find that Mrs Smith had been unfairly dismissed when her employer refused her request to postpone a disciplinary hearing to enable her union official to accompany her. 

Facts

Mrs Smith was employed by Talon Engineering Ltd (Talon), a specialist manufacturer of motorcycle racing parts, from 1994 until she was summarily dismissed on 30 September 2016. She had an unblemished record. 

Mrs Smith was suspended on 29 July 2016. She attended an investigation meeting on 9 August and on 26 August she was invited to a disciplinary hearing on 5 September 2016. The disciplinary hearing was postponed because Mrs Smith had a period of sickness absence followed by a period of annual leave. On 19 September 2016, Mrs Smith was invited to a rescheduled disciplinary hearing on 29 September 2016. 

Mrs Smith indicated her intention to be represented by her trade union regional official but he was unable to represent her during the week of 29 September 2016. Mrs Smith's union official sent an email explaining he was unavailable due to a conference he was attending, and he provided dates of his earliest availability which were less than two weeks later (10, 13 or 18 October 2016). Talon refused to postpone the rescheduled disciplinary hearing. 

In subsequent correspondence Talon asserted that it was entitled to reject Mrs Smith's adjournment request because her union representative could not attend a disciplinary hearing within five days of the set date. Section 10 of the Employment Relations Act 1999 sets out the statutory provisions for accompaniment rights, including that a worker has a right to be accompanied and if his chosen companion is not available he can propose an alternative date within five working days. The right not to be unfairly dismissed is a separate statutory provision. 

Mrs Smith informed Talon that she was not prepared to attend a disciplinary hearing without her chosen union representative. Talon decided to proceed with the disciplinary hearing in her absence. 

Talon wrote to Mrs Smith on 30 September 2016, detailing three allegations that had been proven against her. First, that the content and professionalism of emails that Mrs Smith had sent to a key contact had the potential to bring Talon into serious disrepute; secondly that comments about a colleague were abusive and disrespectful and amounted to a breach of the company's bullying and harassment policy; and thirdly, that Mrs Smith deleting some of her emails had been a deliberate attempt to conceal their content and she had removed sensitive company information in doing so. The letter explained that this amounted to gross misconduct for which Mrs Smith was summarily dismissed. 

Mrs Smith appealed and the decision to dismiss her without notice was upheld. She lodged a complaint with the ET that she had been unfairly dismissed by Talon. 

Employment tribunal decision

The ET held that Mrs Smith had been unfairly dismissed. The ET found that "the decision to dismiss was unfair procedurally and fatally flawed by the refusal of the Respondent [Talon] to postpone the already once postponed disciplinary hearing to enable the Claimant [Mrs Smith] to be represented by her trade union official". 

The ET's reasons for reaching that conclusion included that it is far preferable if an employee attends a disciplinary hearing and is given the opportunity to put their case to the disciplinary decision maker. All reasonable steps should be taken to ensure an employee can attend a disciplinary hearing. The ET noted there will be cases where it is reasonable to proceed with a disciplinary hearing in the absence of an employee, for example if the employee is being difficult or trying to inconvenience the employer, but none of those situations applied to Mrs Smith. The disciplinary proceedings had not been ongoing for a lengthy period of time and the disciplinary hearing could have been rescheduled for within two weeks of the date set, which would have ensured that Mrs Smith could have attended the disciplinary hearing with her chosen union representative. 

The ET concluded that "no reasonable employer would have refused a further short postponement and gone ahead in the absence of Mrs Smith". Talon appealed the ET's decision.

Employment Appeal Tribunal decision

The EAT upheld the ET's decision and the appeal was dismissed.

Comment

Postponement requests and the associated delays in progressing disciplinary proceedings can prove challenging to employers. Employees may attempt to delay proceedings to maximise the time period they get paid, to buy themselves time to find another job and to try and delay what is potentially an inevitable outcome. The EAT's decision in this case is likely to make the situation even more difficult for employers, with employees seeking longer postponements.

Many employers have, until now, applied the statutory five working days provision to reschedule a disciplinary hearing but this decision suggests that up to two weeks could be a reasonable time period, depending on the circumstances.

Employers should carefully consider the reason for any postponement request and the risks of refusing what could be considered to be a reasonable request.