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The right to be accompanied

The Employment Appeal Tribunal in the case of Talon Engineering Ltd v Smith has held that an employer’s refusal to postpone a disciplinary hearing due to the unavailability of an employee’s trade union representative made the decision to dismiss the employee in her absence unfair.

The Right

Under section 10 of the Employment Relations Act 1999, workers have a right to be accompanied at disciplinary hearings by either a work colleague or trade union representative. Workers can suggest an alternative date for a disciplinary hearing if their chosen companion is unavailable. The employer must postpone the hearing if the date suggested by the worker is reasonable and within 5 working days of the original proposed date.

Background

The Claimant had 21 years’ unblemished service when she was invited to a disciplinary hearing to discuss allegations that she had sent unprofessional emails to a work contact.

A disciplinary hearing was scheduled to take place on 29 September. However, the Claimant’s trade union representative could not attend that date and an alternative date for seven working days later was suggested.

The employer refused to postpone the disciplinary hearing on the basis that it was not within the five working days of the 29 September allowed by law.

The Claimant informed her employer that she would not be attending the hearing without her trade union representative but despite this, the employer went ahead with the disciplinary hearing in the Claimant’s absence and proceeded to dismiss her.

The Claimant brought a claim for unfair dismissal.

Decision

The Employment Tribunal held that the decision to dismiss the Claimant had been procedurally unfair because of its refusal to postpone the hearing when the Claimant’s companion was unavailable.

The employer appealed on the basis that it did not have to accept a postponement that was more than five workings days after the original date.

The Employment Appeal Tribunal (“EAT”) dismissed the appeal. It held that although the employer did not breach statutory the right to be accompanied, its refusal to postpone the hearing by an extra two days was unfair.

Comment

Employers should be seen to be reasonable when dealing with requests to postpone as failure to do so could result in any subsequent dismissal being rendered unfair on procedural grounds.

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