The right to be accompanied and postponing a disciplinary hearing

Disciplinary hearings and the processes and procedures that surround them are familiar areas of law to most Employment claim solicitors – but even the best employment lawyers will accept that there is always something new to learn in this dynamic area of employment law. The right to be accompanied can cause issues for employers, especially in the context of postponing a disciplinary hearing so that the employee’s chosen representative can accompany them. In a recent case of interest to employment law solicitors London, the Employment Appeal Tribunal found that a dismissal could be procedurally unfair even if a refusal to postpone a disciplinary hearing for this reason was not in breach of the relevant statutory provisions.

The right to be accompanied at a disciplinary hearing

Most employers – and the UK employment lawyers that advise them – are fully familiar with the right to be accompanied contained in s. 10 Employment Relations Act 1999. The legislation allows an employee who is attending a disciplinary meeting to take someone with them. This can be a colleague, a trade union representative or an official employed by a trade union, but no one else. An employer may agree that someone else, for example a family member, can accompany the employee at the meeting or meetings concerned.

As with any meeting, and as even the best Employment lawyer will have experienced, disciplinary meetings can often be postponed. One of the logistical issues in disciplinary hearings is ensuring that the person chosen to accompany the employee can attend on a given day that is also convenient for the employer and employee. If the chosen companion is unavailable on the date set by the employer, s. 10 makes provision for an employee to propose an alternative date for a disciplinary hearing. The alternative date must be reasonable, and within 5 working days of the original hearing. The employer must usually allow the postponement in these circumstances, unless it would be reasonable to refuse. It is worth taking advice from a top employment law firm if this is something you are considering as an employer.

The facts in Talon Engineering Ltd v Smith

Mrs Smith was 59. She had worked for Talon Engineering Ltd, a small family engineering firm for over 20 years when she was summarily dismissed in 2016. She was invited to a disciplinary hearing scheduled for 5th September 2016, but this was postponed due to her sickness and a period of annual leave. The hearing was rescheduled for 29th September 2016. Mrs Smith’s regional trade union representative was unable to attend on 29th September and suggested alternative dates which were 10, 13 or 18th October 2016. Talon Engineering Ltd refused to postpone the hearing. They took the view that the hearing had already been postponed once and it would cause an intolerable strain to agree to a further postponement. The employer also referred to the statutory provisions which entitled it to reject the new hearing date because it was not within 5 working days of 29th September.

The employer went ahead with the disciplinary hearing, but Mrs Smith did not attend because she could not have her chosen representative with her. She was summarily dismissed in her absence.

The decision of the Employment Tribunal

The Employment Tribunal agreed with Mrs Smith that her dismissal was procedurally unfair. It held that it was far preferable for an employee to attend the disciplinary hearing and that all reasonable steps should be taken to ensure that this should happen. This was not a case where Mrs Smith was being difficult in requesting a postponement; nor was it a case when it could be said that things had gone on for long enough (as come sometimes happen with successive requests for postponements). The Tribunal concluded that “…no reasonable employer would have refused a further short postponement and gone ahead in the absence of Mrs Smith.” In going on to consider the allegations in the context of contributory fault, Mrs Smith’s basic and compensatory awards were reduced by 15% and the tribunal applied a further 15% Polkey reduction to the compensatory award.

The Employment Appeal Tribunal upheld the Employment Tribunal decision

The employer argued that in its decision, the Employment Tribunal made no reference to s. 10 of the Employment Relations Act and the ACAS code of practice on disciplinary hearings. In particular, it argued that under s.10, the employer was only required to consider postponements if the new date was within 5 working days of the original. None of the dates proposed by Mrs Smith and her companion were within the requisite 5 working days. The Employment Appeal Tribunal thought this was an ‘interesting’ point. The EAT distinguished the right to be accompanied, stemming as it does from trade union legislation, and ultimately Article 11 of the European Convention on Human Rights, and the rules relating to unfair dismissal. It felt that it was wrong to conflate the 2. While a breach of section 10 would render a dismissal unfair, it did not automatically follow that complying with section 10 would render a dismissal fair. Under the rules relating to unfair dismissal, the Tribunal was entitled to consider that the failure to postpone the hearing in these circumstances rendered the dismissal unfair even though there was no breach of s. 10.

Lessons for employers

The case has an important lesson for employers. Just because a postponement does not fall within the parameters of s.10 Employment Relations Act does not mean the employer should not consider agreeing to the postponement. It will depend on the circumstances, but as with Mrs Smith, where an employee has compelling reasons for the postponement and is not at fault, it may well be reasonable for the employer to agree to postponing the disciplinary hearing.

For advice about disciplinary hearings and grievances, and more on the right to be accompanied, contact our employment law team on 0203 959 9123. We are available to deal with all aspects of employment law and can provide HR and management training in key aspects of employment law, as well as providing practical support in day to day and contentious Employment matters.