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A Company stung by the right to be accompanied

HL
BY Hannah Lynn
Employment law

The Law

As we all know, there is a well-established right to accompaniment in formal work meetings. Section 10 of the Employment Relations Act 1999 provides that where an employee is asked to attend a grievance or disciplinary hearing and reasonably requests to be accompanied at that hearing either by a work colleague, or trade union official, this request must be allowed. Previous case law has shown this is an absolute right and that it will apply even if there is history between the employer and the companion.

Where this can come into dispute however is where the chosen companion cannot attend the hearing for the date that it has been set. In this case S.10 also provides that if the employee can suggest a reasonable alternative within the next five working days that the hearing should be postponed to allow the right to be accompanied to be exercised. 

Talon Engineering V Smith

In this case, Mrs Smith worked for a motorcycle manufacturer, Talon Engineering Ltd, and sent an email to a business contact being rather uncomplimentary about one of her colleagues which the employer felt was unideal. Following an investigation, Mrs Smith was called to a disciplinary hearing but her union rep was unable to attend the date of the hearing.

Several alternative dates were suggested by Mrs Smith and her rep, the first being 2 weeks after the original hearing was scheduled. Talon were not willing to delay the hearing to accommodate Mrs Smith’s companion for more than 5 working days and so the hearing  went ahead in her absence. Mrs Smith was found to have committed gross misconduct and was summarily dismissed. She appealed and her appeal was rejected. Mrs Smith then brought a claim in the Employment Tribunal for unfair dismissal.

The Tribunal found that the employer did have a potentially fair reason for dismissing Mrs Smith, i.e. conduct, but concluded that no reasonable employer would have refused a further short postponement of the disciplinary hearing and proceeded in her absence. It was noted that the further delay to ensure Mrs Smith’s attendance and grant her the opportunity to be heard and accompanied would have been a short one.

Talon appealed to the Employment Appeal Tribunal (EAT), however, the EAT upheld the finding of unfair dismissal. The EAT also considered the right under section 10 highlighted the fact that the right to be accompanied and the law on unfair dismissal are two different legal issues. If Mrs Smith’s claim were for a breach of her right to be accompanied, then Talon could not be criticised for failing to reschedule the hearing given Mrs Smith’s inability to attend a reconvened hearing within 5 working days. However, in a claim for unfair dismissal, it was unreasonable of Talon not to postpone the hearing in these particular circumstances.

The case shows that employers would be wised to exercise patience and show that they have taken steps to reasonably accommodate any short delays, even if above and beyond five working days. Other steps could also have been put in place to allow her to participate in the hearing. For further information or if you are dealing with tricky disciplinary matters, contact your dedicated Solicitor.

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