Refusal to postpone disciplinary hearing because of unavailable companion led to unfair dismissal

Author: Darren Newman

Darren Newman

Consultant editor Darren Newman looks at a recent decision highlighting the potential danger in proceeding with a disciplinary hearing where the employee's chosen companion is not available - even where the requested postponement falls outside the period allowed for under the statutory right to be accompanied.

What should an employer do when an employee's chosen representative is not available for a disciplinary hearing? That is the question at the heart of the Employment Appeal Tribunal (EAT) decision in Talon Engineering Ltd v Smith [2018] IRLR 1104 EAT. Unfortunately, the EAT's answer is likely to cause widespread concern and uncertainty.

The employee, Mrs Smith, was accused of gross misconduct and was relying on her union representative to accompany her to the disciplinary hearing. He was away at a conference for the week in which the hearing was scheduled so a request was made for a postponement. The earliest date when he could attend a hearing was almost two weeks later. The employer refused to wait any longer (there had already been one postponement due to illness) and the employee refused to attend the hearing without her representative present. The hearing went ahead in her absence and she was dismissed.

I suspect that the employer was advised that it could safely refuse the postponement because, under the statutory right to be accompanied, a postponement is required only where the worker nominates a new date that is within five working days of the proposed hearing. However, that period relates only to the right to be accompanied - the right not to be unfairly dismissed is a separate right, which depends on whether or not the employer acted reasonably. The employment tribunal held that it was not reasonable for the employer to refuse the employee's request and the EAT upheld the finding of unfair dismissal.

I have two problems with the EAT's approach. The first is its conclusion that it did not matter that the tribunal did not even consider the five-day rule relating to the right to be accompanied. The EAT is technically correct that the right to be accompanied is distinct from the right not be unfairly dismissed, but this is not a distinction drawn in the Acas code of practice on disciplinary and grievance procedures. There is no suggestion in the code that a reasonable employer would consider going further than required under the right to be accompanied to accommodate an employee whose representative is unavailable. Unfair dismissal always depends on what is reasonable in all the circumstances of the case, but surely compliance with the right to be accompanied is at least a relevant consideration to which the tribunal should refer when considering fairness? It must provide some sort of benchmark or anchor point for what would normally be regarded as reasonable - even if there will be cases where a reasonable employer would agree to a longer postponement. In Talon, the employee was proposing a relatively short postponement and it is easy to argue that a reasonable employer would have been prepared to wait for just a few more days. However, neither the tribunal nor the EAT gave any indication of what sort of delay a reasonable employer should tolerate - leaving the position regrettably unclear.

My second problem is that the EAT held that the employee could not be criticised for refusing to attend the hearing if her chosen representative was not present. This strikes me as a worrying development that seems to give employees a veto over hearings that are not being conducted to their liking. The tribunal and the EAT treated the employer as having chosen to go ahead with a hearing even though the employee could not attend. But neither considered if she could have attended with a different representative, or even on her own. She would have been free to argue that the hearing that took place was unfair, but the employer would also have been able to argue otherwise. As it was, the employee was able to deny the employer the opportunity of conducting a fair hearing despite the absence of her chosen representative. In treating an employee who refused to attend a hearing as though she was unable to attend it, the EAT has made it harder for employers to know whether or not it is reasonable to proceed with a hearing in an employee's absence.

Of course, in an unfair dismissal claim, liability is not everything. The tribunal can make adjustments to the compensation payable to reflect any misconduct on the part of the employee (contributory fault) or the chances of a fair dismissal if the employer had behaved reasonably (a Polkey deduction). An employer with cast iron evidence of gross misconduct on the part of an employee is unlikely to be required to pay substantial compensation even if the procedure followed prior to dismissal was fundamentally flawed.

In the present case, the tribunal made a reduction of 15% to represent the employee's contributory fault and a Polkey deduction of a further 15%. Essentially the employee's misconduct boiled down to her having made disparaging comments about unnamed colleagues in emails to a contact with whom her employer had done business. The tribunal thought that, given the fact that the employee had more than 20 years' service, it was highly unlikely - but not impossible - that a reasonable employer conducting a fair hearing would have chosen to treat this as gross misconduct and dismiss her.

It might have been more straightforward for the tribunal to find that the dismissal was unfair because it was too harsh a sanction, but that is a very difficult finding for a tribunal to make. The combination of the range of reasonable responses test and the need for a tribunal not to substitute its own view for that of a reasonable employer leaves tribunals open to appeal if they find that an employee's conduct simply did not warrant dismissal. On the other hand, a tribunal seems to be on safer ground if it criticises the way in which an employer reached its decision, rather than the fairness of the decision itself.

As a result, over the years, unfair dismissal law has focused more on the procedure followed prior to dismissal than on the substance of the decision to dismiss. It is important that employees receive a fair hearing, but this emphasis on technical procedural requirements is not healthy. It makes internal disciplinary procedures more legalistic and detached from the real substance of the issue.

Most employers want to do the right thing. In deciding whether or not to dismiss an employee they want to follow the accepted standards of reasonableness. However, in Talon the EAT has made it harder for employers to judge if the procedure they are following is a fair and reasonable one.