Opinion

Failure to postpone a disciplinary hearing may make a dismissal unfair

5th December 2018

Employers should be aware of the right for employees to be accompanied by a fellow worker or union official to any meeting which may result in a disciplinary sanction. Most employers will also be aware of the employee’s right to request a meeting is postponed if their companion is unable to attend the disciplinary meeting. So what happens if an employer fails to postpone a disciplinary meeting when a companion is unable to make the meeting? In Talon Engineering Ltd v Smith it was held that the subsequent dismissal was unfair.

Mrs Smith was invited to a disciplinary meeting after she sent an email to a customer which criticised one of her colleagues. Mrs Smith asked her trade union representative to attend this disciplinary meeting with her. He responded saying he was unable to make that date and his next available date was almost two weeks later. This led to Talon Engineering Ltd (Talon) refusing Mrs Smith’s request to postpone the disciplinary stating that they had the right to reject the request as the trade union representative could not attend within 5 days of the initial meeting date.

Mrs Smith refused to attend the meeting without her companion so Talon held the disciplinary meeting in her absence and summarily dismissed her. Mrs Smith appealed the decision, which failed, and pursued a claim for unfair dismissal.

As employers should be aware, there may be a successful unfair dismissal claim even if the decision to dismiss was fair but the procedure followed was unfair. The tribunal held in this case that although Talon had a potentially fair reason for dismissal, the decision to dismiss was procedurally unfair. This was due to their failure to postpone the meeting.

The Employment Appeal Tribunal agreed with the tribunal’s decision stating that it was unreasonable for Talon not to postpone the meeting to enable Mrs Smith to be accompanied.

Employer considerations

It is important for employers to remember that even if they believe they have a fair reason for dismissal, the way in which the dismissal is dealt with should also be fair. Any decision made by the employer must fall within the “range of reasonable responses” or risk leading to a successful unfair dismissal claim.

If you have any questions or concerns about how to handle a disciplinary process, please contact a member of the employment team.

 

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