23 August 2018
In Talon Engineering Ltd v Smith, the Employment Appeal Tribunal (the ‘EAT’) held that an employer’s refusal to postpone a disciplinary hearing for two weeks to enable the Claimant’s union official to accompany her rendered the subsequent dismissal unfair.
In this case, the Claimant faced disciplinary action for sending unprofessional emails. Her disciplinary hearing scheduled for 5 September was postponed due to the Claimant’s sickness absence and annual leave and rescheduled for 29 September 2016. The Claimant’s union official was unavailable on that date; the earliest he was available was 10 October. The employer said that it was not prepared to wait given the considerable period of time that had passed and the impact on the business that a further delay would cause. Further, the employer asserted it was entitled to reject the adjournment request because the union official could not attend within five days of the date set. The Claimant refused to attend in the absence of her representative and the employer made the decision to dismiss her in her absence.
In finding that this rendered the dismissal unfair, the Employment Tribunal (with which the EAT agreed) recognised that there may be cases where it is reasonable to proceed in the employee’s absence (e.g. where she is being difficult or trying to cause inconvenience) and there may be situations where proceedings have gone on for long enough and a decision must be taken. However, it felt none of those situations applied here. There had been no misbehaviour on the part of Mrs Smith, proceedings had not been ongoing for a particularly lengthy period and the further delay was only short.
This case is a reminder to employers not to act hastily, even in frustrating situations. Further, whilst the statutory requirement to reschedule meetings within five days where a representative is unavailable will assist in showing that there has been no breach of the right to be accompanied, it may not assist in proceedings for unfair dismissal.