You will already be aware of the importance of following the correct procedures when it comes to dealing with staff misconduct. If not, any resulting dismissal runs the risk of being found unfair by an employment tribunal.
A disciplinary hearing should be conducted in line with what the Acas Code of Practice on Disciplinary and Grievance Procedures (the “Acas Code”) defines as fair. For example, the Code sets out procedural requirements such as
- The need for an employer to act reasonably; and
- Allowing an employee to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing.
But what if the employee’s chosen companion cannot attend the hearing at the time specified by the employer? The Acas Code also sets out requirements for this scenario, and confirms what an employer’s responsibilities. The recent case of Talon Engineering Ltd v Smith UKEAT/0236/17 is an important reminder for employers that, above all, its duty is to act reasonably with their employee. In this particular case, the need to rearrange disciplinary hearings when a chosen companion is unavailable can extend to deferring the hearing for at least two weeks – and possibly more.
The Right to be Accompanied
As stated above, one aspect of an employer’s ‘acting reasonably’, and a key element to a fair disciplinary hearing, is an employee’s right to be accompanied by a chosen companion. This right is referred to in the Acas Code but is also found in sections 10 to 15 of the Employment Relations Act 1999 (the “ERA 1999”).
The right applies if an employee or worker:
- Is required, or has been invited to, attend a disciplinary hearing by their employer; and
- Reasonably requests to be accompanied at the hearing.
In the case that the chosen companion is unavailable at the time that the employer has suggested for the hearing, the employee has the legal right to suggest an alternative time. But, most importantly, the alternative time should not be more than five working days later. If the suggested time is reasonable, then the employer has a duty to rearrange the hearing for that time.
So if the employee suggests a time that is beyond the five working days of the original date proposed, then surely the employer is legally able to refuse their request? Unfortunately, it doesn’t seem to be quite that simple, as the result of the case of Talon Engineering Ltd v Smith UKEAT/0236/17 will demonstrate.
The case
In this case, Ms Smith’s chosen companion was away at a conference during the proposed time, meaning they could only be present at the hearing two weeks after the original proposed date. As a result, Ms Smith refused to attend the original hearing, stating her companion’s unavailability, and requested that it be postponed until she could be accompanied.
The employer (“Talon”), refused this request. Following this, Talon decided to conduct the disciplinary hearing at the original date without Ms Smith or her companion present. The result was that Ms Smith was summarily dismissed.
Ms Smith then brought a claim of unfair dismissal. The tribunal upheld the claim and found the dismissal to have been procedurally unfair. Talon appealed against the tribunal’s decision, which resulted in the case being considered by the Employment Appeal Tribunal (the “EAT”).
Likewise the EAT upheld the tribunal’s original decision and ruled that Talon had acted unreasonably in refusing to postpone the rescheduled disciplinary hearing by two weeks, which would have allowed Ms Smith to attend the meeting accompanied.
Perhaps most important is the fact that the EAT reached this decision despite the fact that the employer was not in breach of the right to be accompanied provisions in section 10 ERA 1999. As mentioned above, these provisions clearly state that the employee’s proposed alternative date for the disciplinary hearing should be within five working days from the original date – and Ms Smith clearly had requested a date well outside of this period.
Key takeaway
This case shows that acting reasonably when conducting disciplinary hearings is, ultimately, the employers overriding obligation. One way of ‘acting reasonably’, as demonstrated in the case of Smith, is the need to be flexible in the process even if this means rearranging the disciplinary hearing beyond the five working day period set out in the ERA 1999.
