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HR practitioners will no doubt be familiar with the statutory right to be accompanied by a colleague or trade union representative at a disciplinary hearing. Found in section 10 of the Employment Relations Act 1999, the provisions go on to state that an employer must postpone the disciplinary hearing if the employee’s companion is not available at the time originally proposed, provided the alternative time suggested by the worker is:

a) reasonable; and 

b) within five working days of the original hearing time.

What happens, however, if the alternative time suggested is not within five working days? Can an employer just press ahead with the original hearing time regardless?

In short, and perhaps not surprisingly, no, as just confirmed by the Employment Appeal Tribunal (EAT) in Talon Engineering Limited v Smith.

What happened?

Mrs Smith, an employee with 21 years’ service and an unblemished record, was alleged to have sent unprofessional emails to a work contact. Following an investigation, she was invited to a disciplinary hearing on 5 September 2016. This was postponed until 29 September, because Mrs Smith was unwell and then on annual leave. Mrs Smith informed Talon that her union representative was unavailable on 29 September and suggested alternative dates just under two weeks later.

Talon refused to postpone the hearing, asserting that it was entitled to reject the postponement request because it was not within five working days of the date set. Since Mrs Smith was not prepared to attend the hearing without her union representative, Talon proceeded with the hearing in her absence on 29 September and decided to summarily dismiss her.

Lessons for employers

The employment tribunal (ET), in a decision upheld by the EAT, found that the failure to postpone the disciplinary hearing to enable the union representative to accompany Mrs Smith made the dismissal procedurally unfair. Talon was too impatient and hasty in its refusal, especially taking into account the short nature of the delay, Mrs Smith’s length of service and her previous unblemished record.  

So where does this leave employers, faced with potentially long-drawn out disciplinary procedures to handle?  Here are some useful points to take away from the decision:

  • The ET stressed that it is “far preferable” for employees to attend a disciplinary hearing, in order to put their case to the decision maker. As such, it is important that “all reasonable steps should be taken” in order to ensure that they can do so. To try to ensure procedural fairness, there is therefore a strong onus on employers to try to facilitate an employee’s attendance at a disciplinary hearing where possible.
  • It is important to remember that the right to be accompanied is an entirely separate right to the right not to be unfairly dismissed, and they come from two distinct statutory provisions. As the EAT explained, a breach of the right to be accompanied “could well, and perhaps almost always will, result in a finding of unfair dismissal”. However, it does not follow that the opposite will be true. Although Talon’s refusal to postpone the hearing was not in breach of the right to be accompanied, this did not prevent the ET from finding that Mrs Smith’s dismissal was nevertheless unfair because of that refusal to postpone.  
  • Having said that, employers’ hands are not entirely tied. Helpfully, the ET acknowledged that there may be times when it will be reasonable to proceed with disciplinary hearings in the absence of an employee. This will include times when an employee is being difficult or trying to inconvenience an employer, but, in the words of the ET, it will also include “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”.

There are clear risks in pressing ahead with a disciplinary hearing in the absence of an employee (whether because of the unavailability of a companion or for some other reason), as this case demonstrates. This is particularly the case if the outcome might have been different had the employee been present. Best practice is always to give an employee a further chance to attend the hearing.

As the ET acknowledged, however, and as set out in the Acas Code, an employer may be able to “make a decision on the evidence available” (para 25) where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause. However, this must be done with caution, taking account of the considerations set out in the non-statutory Acas guide, such as the seriousness of the disciplinary matter under consideration, past cases, the employee’s record and any relevant medical factors. 

Finally, although this case did not touch on the identity of the companion, in case you missed it, here is our blog piece on the extent of an employee’s right to choose their companion.

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