Employers beware - should a disciplinary hearing take place when a companion is unavailable?

• What should an employer do when the employee’s companion is not available to attend a disciplinary meeting?

•  Ambiguity and major concerns following recent EAT decision in Talon Engineering Ltd and Smith EAT/0236/17.

Right to be accompanied

There is a statutory right for employees to be accompanied at disciplinary hearings by either a trade union representative or a colleague. When the companion is unavailable, the employee can have the meeting postponed, as long as the alternative date is reasonable and within five working days of the original hearing date.

Case background

Mrs Smith, a long-serving employee with flawless service was invited to a disciplinary hearing in relation to unprofessional emails sent to a business contact (some of which were deleted by Mrs Smith). The employee was unable to attend the hearing, which was scheduled to be held on 5 September 2016, due to sickness followed by a period of annual leave. The hearing was postponed to 29 September 2016 however, Mrs Smith’s chosen companion – a trade union representative – was not available to attend and offered first available dates which were two weeks away, therefore she requested for the hearing to be postponed yet again. Talon Engineering refused to postpone the hearing any further on the basis that:

• the company was allowed to do this as the companion was not available within the five working days timeframe;
• additional postponement would have a negative effect on employees covering Mrs Smith’s tasks whilst she was suspended from her duties.

The employer held the disciplinary hearing on 29 September 2016 in her absence and came to the decision to dismiss her.

EAT ruling

Mrs Smith won her case when it was heard at employment tribunal.  It was held that it was not reasonable for the employer to refuse further postponement of the hearing.

Following that decision, the employer appealed to the Employment Appeal Tribunal (EAT).  The EAT rejected the employer’s appeal and confirmed that Mrs Smith was in fact unfairly dismissed. However, her award was reduced by 15% on the basis that she contributed to the fault and a further 15% on the Polkey principle. (As outlined by ACAS – “A Polkey deduction can occur when an employer has been found to have acted unfairly in dismissing an employee by failing to follow correct procedure… However, if the tribunal decides that the employee may have been dismissed anyway, they can reduce the compensatory award according to that likelihood as a percentage deduction”).

The EAT established that the employer has acted unreasonably in not postponing the hearing for a short period of time, as the employee was not able to attend the hearing due to no fault of her own.

Given Mrs Smith’s length of service and unblemished disciplinary records, the EAT accepted the tribunal’s statement that the decision to dismiss the employee was a “gross overreaction”.

Aspire Comment

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