Written by Brabners LLP
As you will know, when dealing with misconduct by a member of staff, it is important to make sure that a fair procedure is followed. Otherwise, any resulting dismissal is at risk of being found to be unfair by an employment tribunal.
To help defend a claim of unfair dismissal, a disciplinary hearing must be conducted in line with the principles of fairness stated in case law and the Acas Code of Practice on Disciplinary and Grievance Procedures (the “Acas Code”). The procedural requirements set out in the ACAS Code include for example: (a) the need for the employer to act reasonably; and (b) allowing an employee to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing.
The ACAS Code also sets out requirements that apply if the employee’s chosen companion cannot attend the disciplinary hearing listed by the employer and confirms what an employer should do. The latest case of Talon Engineering Ltd v Smith UKEAT/0236/17 is an important reminder of the need to re-arrange disciplinary hearings when a companion cannot attend and that this can extend to deferring the hearing for two weeks or more!
The Right to be Accompanied
As we have mentioned, one element of a fair disciplinary hearing includes allowing an employee to be accompanied by a trade union representative or a fellow worker. This right is referred to in the ACAS Code but is also found in sections 10 to 15 of the Employment Relations Act 1999 (the “ERA 1999”).
The right applies if a worker: (i) is required or invited to attend a disciplinary hearing by their employer; and (ii) reasonably requests to be accompanied at the hearing. If the employee’s chosen companion is unavailable at the time suggested for the hearing by the employer, the employee has the legal right to propose a different time for the hearing (is the alternative time must not be more than five working days later). If the alternative time is reasonable, the employer must rearrange the hearing for that time.
The recent case of Talon Engineering Ltd v Smith UKEAT/0236/17 considered what an employer should do if an employee’s chosen companion is not available for the meeting within five working days of the original time proposed and whether a disciplinary hearing should have been delayed for a period beyond this.
The Case of Smith
Ms Smith’s chosen companion was unable to attend her disciplinary hearing until two weeks after the original proposed date for the hearing. Ms Smith refused to attend the listed hearing as a result and made her employer aware of her companion’s unavailability.
The employer (“Talon”) refused to postpone the hearing to the later date when Ms Smith’s companion would be available. Talon decided to conduct the hearing anyway (notably without Ms Smith or her companion) and decided to summarily dismiss her.
Ms Smith brought a claim of unfair dismissal. At first instance, the tribunal upheld the claim and found the dismissal was procedurally unfair. Talon appealed against this decision and the case was then considered by the Employment Appeal Tribunal (EAT).
The EAT upheld the tribunal’s decision that the dismissal was procedurally unfair. The EAT held that the employer acted unreasonably in refusing to postpone the rescheduled disciplinary hearing by two weeks so that the employee’s chosen companion could attend. Interestingly, the EAT reached this conclusion despite the fact that Talon was not in breach of the right to be accompanied provisions in section 10 ERA 1999. As mentioned earlier, those legal provisions confirm the employee’s proposed alternative date for the hearing should not be more than five working days after the original date and Ms Smith had suggested an alternative beyond this period.
The learning point from this case is that an employer’s overriding obligation is to act reasonably when conducting disciplinary hearings as confirmed by the ACAS Code. The case of Smith shows that this may require additional flexibility in the process and employers will need to consider re-arranging hearings beyond the five working day period set out in the ERA 1999.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership