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Can an employer refuse to reschedule a disciplinary hearing if the employee’s chosen trade union representative is unavailable?  Under statute, yes, in certain circumstances. If the union representative is unable to attend a reconvened hearing within five working days, the employer is under no obligation to consider adjournment of the hearing.

How does this apply in cases of unfair dismissal rather than breach of accompaniment rights? Can a legitimate refusal to adjourn be the basis for a finding of overall unfairness where there is no good reason for the refusal, besides the statute?

Bullying and harassment policy

In Talon Engineering Ltd v Mrs V Smith [2018], Mrs Smith had been employed by Talon Engineering since 1994. A disciplinary hearing resulted from Mrs Smith’s sending unprofessional emails to a company contact, in which she referred to an unnamed colleague using offensive language. The company believed this to be a breach of their bullying and harassment policy, as well as having the potential to bring the company into disrepute.

Mrs Smith was suspended and attended an investigation meeting. She was then invited to a disciplinary hearing, which was postponed because she was off sick and then had a period of annual leave.  She was invited to a rescheduled disciplinary hearing. Mrs Smith’s chosen trade union official explained that he would be unable to attend and proposed three alternative dates; the company refused to postpone the hearing any longer, claiming that further delay would have an impact on their business and add strain on the staff covering Mrs Smith’s work.

Mrs Smith did not attend the proposed hearing and was given a letter of dismissal. An appeal hearing took place and the dismissal decision was upheld.

Employment Tribunal decision

The Employment Tribunal found that, although Talon Engineering had shown a potentially fair reason for dismissal, to dismiss Mrs Smith was unfair procedurally and flawed by the refusal to further postpone the disciplinary hearing.

The tribunal also stated that breach of the accompaniment right at a disciplinary meeting that results in dismissal of an employee could – and potentially always would –  result in a finding of unfair dismissal; however, the fact that the accompaniment right was not breached did not inherently make the conduct fair. Conduct had to be looked at in the broader context of the process and, in this instance, refusal to delay was unfair.

The tribunal found that Mrs Smith’s emails clearly amounted to misconduct; however, they did not breach the company’s bullying and harassment policy, and dismissal was not fair in all the circumstances. It concluded that no reasonable employer would have dismissed Mrs Smith.

The tribunal did find that Mrs Smith had contributed to her dismissal, resulting in a 15% reduction to her compensatory and basic awards. It also applied a reduction of another 15% on the basis of the Polkey principal.

The case was brought to the Employment Appeal Tribunal on the basis that her right to be accompanied was not breached, so it was an error in law for dismissal to be found unfair on this basis. The tribunal’s decision was upheld and the appeal dismissed.

Practical points for employers to note

An employer may refuse to reschedule a disciplinary hearing if the employee’s trade union representative is unavailable, under section 10(5) of the Employment Relations Act 1998. However, in doing so, they must ensure that they comply with the broader rights of employees relating to procedural fairness as, if brought to tribunal as grounds for unfair dismissal, a refusal could well result in a finding of unfair dismissal for an eligible employee.

For more information on disciplinary proceedings or any of the other issues raised in this article, please contact Jonothan Scollen in the Leeds Employment team by emailing [email protected] or calling 0113 368 7583.