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Peter Olszewski
Peter Olszewski,
ASSOCIATE - SOLICITOR
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Should you proceed with a disciplinary meeting when an employee’s chosen representative is not available?
11 September 2018

Employees who are invited to attend a disciplinary or grievance meeting have the right to be accompanied and to seek an adjournment for up to 5 days if their companion is not able to attend the proposed meeting. The question of whether to proceed in the companion’s absence was considered in Talon Engineering Limited v Smith.

The facts of the case

Mrs Smith had been an employee of Talon Engineering (“TEL”), a medium sized family business for 21 years. She was accused by TEL of gross misconduct in relation to some emails she sent to a key business contact where she referred to an unidentified colleague in derogatory terms. 

TEL invited her to a disciplinary meeting. From the outset she made it clear to TEL that she wished to be represented at the hearing by her trade union representative.

A disciplinary hearing was postponed at her request for a period of 3 weeks due to a combination of annual leave and ill health.

TEL then arranged a second disciplinary hearing date which Mrs Smith again attempted to postpone for a further period of 2 weeks. The reason for the second postponement was that her chosen union representative was away attending a conference. The companion’s absence was evidenced by producing a letter from the trade union representative confirming he was unavailable due to being engaged elsewhere at a conference. TEL refused the request for a second postponement and decided to proceed with the hearing in Mrs Smith’s absence. At the hearing TEL concluded that she was guilty of gross misconduct and she was dismissed.

S issued proceedings in the Employment Tribunal (ET) for unfair dismissal. 

The Employment Tribunal decision

The Tribunal noted that an employee was entitled to adjourn a hearing for up to 5 working days if the companion was unable to attend and that if the claim had been for breach of the right to be accompanied then there would have been no error in TEL’s approach. However, the claim was for unfair dismissal.

The ET on reviewing the evidence found that TEL had shown a potentially fair reason for dismissal. The next issue to consider was whether the refusal to adjourn made the procedure followed unfair. In considering this point the ET stated that:

“There will be cases where it is reasonable to proceed in the absence of the employee, for example where she is being difficult or trying to inconvenience her employer. There will also, no doubt, be situations where, even without bad faith on the part of the employee, proceedings have gone on for long enough and a decision must be taken. Put shortly, none of those situations applied here. There had been no sort of misbehaviour on the part of Mrs Smith, proceedings had not been on foot for a particularly lengthy period and the further delay that would have ensured her attendance was a short one.”

In short, TEL’s decision to refuse the request and proceed in her absence was unreasonable and fell outside the range of reasonable responses available to TEL. The dismissal was therefore held to be unfair. The ET however did apply a deduction to the damages awarded to S for contributory fault in her actions of sending the derogatory emails. 

TEL appealed the decision to the Employment Appeal Tribunal (EAT). The EAT upheld the decision of the ET. 

How should you handle an employee’s request to postpone a disciplinary hearing?

The ACAS code and statute law state that an adjournment should be within 5 working days of the original hearing date. However, where dismissal is a likely outcome of the disciplinary the EAT judgment confirms that a number of factors should be considered when responding to a request to adjourn a disciplinary hearing:

  1. Consider the seriousness of the alleged act (is it misconduct or gross misconduct).
  2. Consider the length of service of the employee.
  3. Has the disciplinary already been unnecessarily prolonged or lengthy.
  4. Consider the reason for the request (is the employee simply attempting to inconvenience the employer, frustrate the hearing, simply unwilling to attend etc., or is there a more genuine reason).
  5. Is the length of the requested adjournment unreasonable.
  6. Would another suitable comparable employer refuse the request to adjourn.
  7. Consider the possible outcome of the hearing if the employer is found to be guilty of the alleged conduct (is dismissal a likely outcome).

Very often if the request is for a short adjournment and dismissal is a real possibility it may well be better (and safer) to allow the request to postpone the hearing to a later date, even though it falls outside the strict legal provisions. It is likely that the financial cost of agreeing an adjournment of that nature will be much less than an adverse Tribunal finding.

Should you have a disciplinary issue you would like to discuss with us please call us on 0118 952 7284 or email Peter Olszewski at [email protected]

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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