A recent decision by the Employment Appeal Tribunal (EAT) has further highlighted the care that employers must take to ensure that employees’ chosen companions are available when conducting a disciplinary hearing.
The case of Talon Engineering Ltd v Smith is one in which an employee, Mrs Smith, had already had a disciplinary hearing postponed once for illness. Her chosen union representative was then unavailable at the time her employer, Talon Engineering Ltd, had chosen for the rescheduled hearing. Rather than wait another two weeks Talon insisted that the hearing go ahead. Mrs Smith refused to attend without her chosen companion and was dismissed in her absence.
As laid out in Discipline and grievances at work: the Acas guide, Mrs Smith had a statutory right to be accompanied and if her chosen companion was unavailable at the scheduled time the hearing should have been postponed to a time that is ‘both reasonable and not more than five working days after the date originally proposed’. In this case the requested postponement was longer, so it could be argued that Mrs Smith was requesting something to which she had no statutory right, but it was the EAT’s opinion that the right to be accompanied and the right not to be unfairly dismissed are different. It felt that in refusing to postpone, Talon acted unreasonably and, as a result, Mrs Smith was unfairly dismissed.
The decision has created more problems than it has solved. There is now confusion over what is reasonable. The Acas guidance gives no help to employers on reasonable flexibility. Read literally, as many employers would, there is nothing technically unreasonable about refusing to reschedule if the date in question falls outside the period that the guide specifies. But there are many instances in which it could be argued that this would be unreasonable, and reasonableness is subjective. So, if some flexibility might be expected then what are needed are some reference points for employers to determine how far they might go, and here neither the original tribunal nor the EAT has clarified the issue at all.
A further issue is that the EAT in this case treated Mrs Smith as if she were unable, rather than unwilling, to attend her disciplinary hearing. She could have chosen a different companion and then argued that the hearing was unfair. There is potential for setting a dangerous precedent here, where an employee has an employer over a barrel where timing of hearings is concerned. Mrs Smith effectively denied Talon the opportunity to conduct a fair hearing, and the EAT seems to have sanctioned that.
In its ruling the EAT noted that Mrs Smith was guilty of misconduct in having made some disparaging comments in an email to one of Talon’s contacts, but in light of her 20 years’ service to the company it considered it highly unlikely that an employer acting reasonably would have considered her actions gross misconduct justifying dismissal. This kind of supporting consideration clearly contributed to an overall perception that Talon was operating unreasonably, which ought to sound a warning bell to any employer considering disciplinary proceedings against an employee that might lead to dismissal – evidence of gross misconduct needs to be concrete.
In summary, what seems to be most clear from this is that in all such cases there needs to be a measure of reasonableness on both sides. In the absence of further guidance on what is reasonable, any disciplinary procedure that falls back too heavily on legalese or nit-picking interpretation of guidelines risks being deemed unreasonable. Employers need to remember that, whatever the issues of the individual situation, every effort still needs to be made to remember that there are human beings involved, and to ensure decent treatment.
