Beware when proceeding with a disciplinary hearing where the employee is seeking a postponement. A recent Employment Appeal case (Talon Engineering Ltd v Smith) found that the employer had acted unreasonably and therefore unfairly dismissed the employee by failing to reschedule her disciplinary hearing by ten days to allow her chosen trade union representative to attend.
The employer’s action was not actually in breach of the employee’s right to be accompanied; provisions in s10 of the Employment Relations Act 1999. This right only requires an employer to agree to a request to postpone a hearing if the suggested rescheduled date is within five working days of the original date. However, it is still for the tribunal to consider the fairness and reasonableness of the actions of the employer in each individual circumstance.
In this case the Tribunal examined whether Smith was acting in bad faith or obviously prolonging the situation unnecessarily and if the process had been going on far too long. The Tribunal found that none of these circumstances applied and the employer had been wrong not to allow the postponement.
Employers are therefore advised to be careful when proceeding with disciplinary and other dismissal meetings without allowing the employee the right to be accompanied. Where a postponement is longer than five days but it is the fair, reasonable and proportionate thing to do, it should be done.
For more information on unfair dismissal and disciplinary procedures please contact Halcyon HR Consulting Ltd.