Employment Law Case Update: Talon Engineering Limited v Smith
Mrs Smith, employed by Talon Engineering Ltd (TEL) since 1994, held a clean employment record. However, in 2016 she was accused of an act of gross misconduct and asked to attend a disciplinary hearing on 5th September. Due to a period of sickness absence and annual leave, the hearing was rescheduled for the 29th November.
Mrs Smith asked to be accompanied at the hearing by a trade union representative, but he was unable to attend on the arranged date. In an email, her representative explained why he could not attend and provided the dates of his earliest availability – which was less than two weeks later. Mrs Smith requested to postpone the hearing until her trade union representative could also attend.
The Employment Relations Act 1999 provides that a worker has a right to be accompanied at a hearing, and if a chosen companion is not available at the proposed hearing time, they may suggest another reasonable date that falls within five working days of the original date.
TEL went ahead with the hearing without Mrs Smith or her companion present, and decided to dismiss her for gross misconduct. Mrs Smith then brought a claim for unfair dismissal in the Employment Tribunal (ET). They held that it was unreasonable for TEL to proceed with the hearing in Mrs Smith’s absence; a further postponement to allow Mrs Smith’s companion to accompany her should have been agreed.
TEL appealed to the Employment Appeal Tribunal (EAT) who upheld the ET’s decision that the dismissal was unfair, stating that while a breach of the Employment Relations Act would ordinarily result in an unfair dismissal, this is not always the case.
If a companion is unavailable for a period of more than five working days it does not mean that an employer is entitled to proceed in the absence of an employee. The EAT held that the ET was right to find the dismissal unreasonable as TEL didn’t postpone the hearing for a further short period of time.
Employers need to be wary of postponing a disciplinary hearing and should carefully consider the reason for such requests, and consider the consequences of refusing a reasonable request. Employees should be encouraged to explain their actions at their disciplinary hearing, and all reasonable steps should be taken to ensure attendance.
If an employee is trying to inconvenience the employer, or proceedings have been ongoing for a long period of time, it will be deemed reasonable to proceed with a disciplinary hearing in the absence of an employee.
Even if the request is for more than five working days after the original date, a request to postpone should be considered on its own merits.
This article is from our weekly Employment Law Newsletter published on 04/10/2018. If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email email@example.com
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