Failure to adjourn a disciplinary or grievance hearing may render a dismissal unfair
Wednesday 10th October 2018
Any worker required to attend a disciplinary or grievance hearing may be accompanied by a companion, being a colleague or trade union representative. Under the Employment Relations Act 1999, if the worker requests a postponement to accommodate a companion who is unable to attend then this must be granted, provided the alternative date is: (a) reasonable, and (b) within five working days of the date originally proposed by the employer.
In Talon Engineering Limited v Smith the claimant requested a postponement from 29 September 2016 to a date after 9 October 2016 (i.e. more than 5 five working days) for this reason. With disciplinary proceedings already having been afoot for some 2 months, Talon refused. In turn, Ms Smith declined to attend the hearing without her companion and in her absence was dismissed on 30 September 2016. Ms Smith appealed, but the dismissal was upheld.
The EAT recently found that while there may have been a potentially fair reason for Ms Smith’s dismissal, the decision to dismiss was nonetheless procedurally unfair. The above right to accompaniment therefore needs be considered separately from the provisions for unfair dismissal.
During disciplinary proceedings an employee may try to delay in order to extend any period of suspension for as long as possible, particularly if they are still being paid. Following the same commercial rationale, employers are likely to try to progress matters. Indeed, employers are encouraged to deal with a disciplinary process promptly and without unreasonable delay. Failure to do so is more likely to render a subsequent dismissal unfair.
This decision has the potential to place employers firmly between a rock and a hard place in having to decide between either slowing proceedings at the request of its employee, or pressing on and risk facing a subsequent claim. Of course this should not be overstated, as it would be a brave claimant who deliberately missed their disciplinary hearing and placed all their eggs in the basket of procedurally unfair dismissal.
While Ms Smith appealed, the EAT found that the approach of Talon did not amount to a rehearing. It would be worth employers bearing in mind that it is possible for procedural defects in an initial disciplinary process to be remedied by an appeal that is sufficiently comprehensive.
Employers should also note that the requirement to act reasonably when asked to postpone will apply even where the requested postponement goes beyond the statutory five working day extension. How much further beyond would appear to now be a question for the Tribunal.