Mrs Smith was employed by motorcycle manufacturer Talon Engineering. Following an investigation, she was invited to a disciplinary hearing for allegations of gross misconduct after she referred to a colleague as a ‘knob head’ in an email to an external company.
The first date of the disciplinary hearing was moved as she was off work due to sickness absence. The hearing was rescheduled but this time her trade union rep was unavailable. He was at a conference which meant that the new suggested date of the hearing was 2 weeks later. Talon refused to further delay the hearing and Mrs Smith refused to attend without her rep. The hearing was held in her absence and the decision was taken to summarily dismiss her. Her appeal was rejected.
Mrs Smith subsequently raised a claim for unfair dismissal in the Employment Tribunal. The ET found that whilst Mrs Smith’s conduct was a potentially fair reason for her dismissal, no reasonable employer would have refused a further short postponement of the hearing and gone ahead in her absence. They also held that the appeal did not rectify the shortcoming of Mrs Smith being denied the chance to have her side of the case heard at the original disciplinary hearing. Her award was reduced to reflect that her actions had contributed to her dismissal and that if a fair procedure had been followed, she would likely have been fairly dismissed.
The EAT upheld the finding of unfair dismissal. They considered the right to be accompanied under s.10 of the Employment Rights Act 1995 which says that the employer must postpone the hearing to allow the companion to attend if the proposed date is within 5 working days. If Mrs Smith had raised a claim for a breach of the right to be accompanied, then this would have likely been unsuccessful. However, the EAT found that the law on unfair dismissal is separate from this right and that it was unreasonable of Talon not to postpone the hearing in the circumstances.
This decision appears to place an additional obligation on employers to consider the reasonableness of extending the five-day postponement rule. In refusing a request to postpone the hearing, employers may be wise to consider whether dismissal may result from the hearing and if the employee is likely to attend without their companion. Where a refusal to postpone would be based on the 5-day rule alone, employers might wish to take additional steps to accommodate an employee whose representative is unavailable to avoid falling foul of unfair dismissal legislation.