At a disciplinary hearing employees are entitled to be accompanied by a chosen companion. What happens, however, if the employee requests a postponement because that person is unavailable at the specified time of a hearing? The rules are that if the request is to postpone to a date within five days of the original then the employer must agree. The employer is not necessarily in breach of the Employment Relations Act (ERA) 1999 if they refuse to reschedule outside that time frame, but they may still be opening themselves to a claim for unfair dismissal.
In the recent matter of Talon Engineering v Smith, Ms Smith was an employee of a motorcycle parts company who had been accused of gross misconduct and suspended. Owing to illness and a holiday, she requested a rescheduling of the initial disciplinary hearing. That request was approved and the meeting rescheduled, but Ms Smith wished to be accompanied by her union representative and he was unavailable on the proposed new date. He emailed Talon, explaining that he was unavailable and why, and suggested some possible alternative dates that fell two weeks after the proposed one. The request to reschedule was refused, Talon proceeded with the disciplinary hearing in Ms Smith’s absence, and she was dismissed. She appealed, but Talon felt that the evidence for the gross misconduct was compelling and they stuck by their decision to dismiss her without notice.
Ms Smith then turned to an employment tribunal to claim for unfair dismissal. Both that tribunal and the subsequent appeal tribunal upheld her claim. Section 98 of the Employment Rights Act 1986 sets out a range of reasonable responses available to employers. In this case it was considered that, as the requested postponement was only fairly short, Talon had acted over-hastily in dealing with someone who had, prior to that point, a 21 year unblemished record. They had been unreasonable by not doing more to ensure that Ms Smith could have her union representative present.
There are some important points for employers to take away from this. Firstly, this was an unfair dismissal claim, not a claim for a breach of Ms Smith’s right to be accompanied. If an employer is in breach of the right to be accompanied as set out in section 10 of the ERA, then almost certainly any subsequent dismissal will be procedurally unfair. However, the opposite is not necessarily true and any tribunal will examine whether an employer acted reasonably.
Secondly, context is key. Any request to postpone must always be considered and never dismissed out of hand without thought. Refusal may still be appropriate. There may be clear evidence of delaying tactics, or the employee may clearly be attempting to cause deliberate inconvenience. Alternatively there may be circumstances where there has already been a long delay. However, employers do need to be mindful that to refuse a postponement request requires them to be on very secure ground, because an unfair dismissal claim may easily follow.
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