Legal BackgroundSection 10 of the Employment Relations Act 1999 (Section 10) gives workers the right to be accompanied by a fellow worker or union official to all meetings that may result in a disciplinary sanction. If the worker’s companion is unable to attend a disciplinary meeting, the worker can ask for the meeting to be postponed. The employer must agree if the alternative time requested is reasonable and within five working days after the date originally proposed.
Ms Smith had worked for her employer, Talon Engineering Ltd (‘Talon’) for 21 years and had a clean disciplinary record. However, when Talon discovered that she had sent emails to a business contact using ‘very inappropriate’ language to describe colleagues, (and, when subsequently questioned, had tried to delete them), it commenced disciplinary proceedings against her.
A disciplinary hearing was originally scheduled for 5 September, but it was postponed due to Ms Smith being ill and then on annual leave. Ms Smith was subsequently invited to a rescheduled hearing on 29 September. Her chosen companion, a union official, was unable to attend on this rescheduled date, but confirmed that he could attend a date just under two weeks later. Talon refused Ms Smith’s request to postpone her hearing until this later date. Talon asserted that it was under no obligation to agree to the request as the postponement was for longer than the five working days specified in Section 10.
The rescheduled hearing went ahead on 29 September in the absence of Ms Smith, who refused to attend without her chosen companion. Following the hearing, Talon dismissed Ms Smith, a decision which it upheld on appeal. Ms Smith claimed unfair dismissal.
The Employment Tribunal (ET) found that, although Ms Smith’s employer had a potentially fair reason for dismissing her (i.e. misconduct), the fact that it refused to allow the requested postponement of the disciplinary hearing to allow Ms Smith’s companion to attend meant that the disciplinary process was flawed. Accordingly, even though the dismissal was substantively fair, it was procedurally unfair. The ET therefore found that Ms Smith had been unfairly dismissed. Talon appealed to the EAT.
Talon argued that the tribunal had made an error of law by failing to have regard to the provisions of Section 10. In rejecting Talon’s appeal, the EAT emphasised that the issue before it was one of unfair dismissal under s.98(4)of the Employment Rights Act (ERA), not an alleged breached of the right to accompanied under Section 10. The EAT confirmed that, whilst a breach of Section 10 would almost always result in a subsequent dismissal being deemed ‘unfair’, the corollary was not true, and that whilst there may be other legal provisions impacting on the operation of disciplinary proceedings, these did not override the overall duty on the employer to ‘act reasonably’. The EAT endorsed the tribunal’s view that it was ‘unreasonable’ for Talon not to have postponed the rescheduled hearing for an additional short period of time in order to allow Ms Smith’s chosen companion to attend. The EAT therefore concluded that the ET had been entitled to find Ms Smith’s dismissal unfair.
This case is a useful reminder of one the cornerstones of the law on unfair dismissal, an employer must act ‘reasonably’ in all the circumstances. This duty applies to the entirety of the disciplinary process, including the arrangements for the disciplinary hearing itself. As the EAT made clear in Talon, simply following ‘the letter of the law’ doesn’t mean that a disciplinary process will automatically be deemed to have been conducted reasonably. All the circumstances will be taken into consideration.
What is helpful to employers is that the ET in Talon noted that there will be circumstances in which it would be appropriate for the employer to proceed in the absence of the employee’s chosen companion. This may be the case, for example, if the employee is being vexatious, or unreasonably refuses to engage in the process, or if the process has already been going on ‘too long’, or there have been a number of prior adjournments.
Perhaps the main lesson from this case is ‘more haste, less speed’. ETs tend to take a dim view of employers who are seen to be acting overly rigidly and it is generally better, and safer in the long run, to take the time to get things right, rather than seek to bring proceedings to an end as quickly as possible, however tempting that may sometimes feel!
How can EEF Help?
EEF members can find additional information and support concerning the operation of disciplinary proceedings on the HR and employment law resources section of the EEF website. Members can also hear more about the implications of recent employment case law developments by attending our Autumn Member Briefing: Employment Law Updates. You can review dates and reserve your free place here.