According to a case that was reported in August 2018 a refusal to postpone a disciplinary could make the dismissal unfair.  In the case of Talon Engineering Ltd v Smith the employee, Mrs Smith, was suspended for sending an email to a customer in which she used inappropriate language about a colleague.  She was invited to a disciplinary hearing and wanted to bring her trades union representative with her.  But the date was not possible for the union rep who could not make a new date for almost 2 weeks.  The request to postpone the disciplinary hearing was refused, Mrs Smith refused to attend, the hearing went ahead without her and she was summarily dismissed.  She appealed but the dismissal was upheld and so she issued a claim for unfair dismissal.

The point of law in this case is a right to be accompanied to all meetings that may result in disciplinary sanctions under section 10 Employment Relations Act 1999.  The employee’s companion can be a work colleague or a trades union representative.  If they are not available, the employee can ask for the meeting to be postponed.  The employer must agree if the alternative time of the meeting is reasonable and is within 5 working days of the original date.

Although Talon Engineering Ltd showed that there was a potentially fair reason for the dismissal, the Tribunal found it was procedurally unfair.  Why?  Because of the refusal to postpone the disciplinary hearing.  The Tribunal judge said:-

‘It goes without saying that it is far preferable if an employee such as Mrs Smith attends her disciplinary hearing. It is her opportunity to put her case to the decision maker. All reasonable steps should be taken in order to ensure she can do so. 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. 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.’

The employer appealed to the Employment Appeals Tribunal and lost there too.  The EAT endorsed the tribunal’s view that the employer’s response fell outside the range of reasonable responses and the dismissal was unfair.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0236_17_2003.html 

What do you think?  Does this make sense to you?  If you would like to take advice in a similar situation, just give us a call so that we can help.

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