The unavailability of the companion – to postpone or not to postpone?

Carrying out a fair disciplinary, capability or grievance procedure is essential for avoiding unfair dismissal claims and although the principles are well-established, many employers are still getting it wrong. Claims for unfair dismissal are common and many cases succeed because of a flaw in procedure.

The recent EAT case of Talon Engineering Ltd v Smith  dealt with the common situation where an employee requests a disciplinary hearing to be postponed on the basis that their preferred companion is unavailable to attend on the proposed date.

Employees have a statutory right to be accompanied at a formal grievance and disciplinary hearing under section 10 Employment Relations Act 1999 (ERelA 1999). A disciplinary hearing for the purposes of exercising this right is a hearing that could result in:

• A formal warning being issued.
• The taking of some other disciplinary action such as suspension or demotion.
• The confirmation of a warning, for instance at an appeal hearing.

The companion must be someone who is either, employed by a trade union of which they are an official, an official of a trade union (not employed by the union) or another of the organisation’s workers.

In this case, the claimant was invited to attend a disciplinary hearing on 5 September 2016 following a potential bullying/ harassment issue. This hearing was postponed due to the claimant being unwell and then taking annual leave. On 19 September the claimant was invited to a rescheduled hearing set for 29 September. However, her union official was unavailable to accompany her to the hearing until two weeks later. The employer refused to postpone the rescheduled meeting and the claimant refused to attend without her chosen representative. The employer proceeded with the hearing in the claimant’s absence and she was summarily dismissed. The claimant brought an unfair dismissal claim.

The Employment Tribunal held that the decision to dismiss was unfair procedurally and “fatally” flawed by the employer’s refusal to postpone an already postponed disciplinary hearing to allow the claimant to be accompanied by her trade union official. No reasonable employer would have refused a further short postponement.

The Employment Appeal Tribunal dismissed the employer’s  appeal. They identified the presence of two distinct employment laws “which serve very different functions”: (1) the statutory right to be accompanied allows a worker to propose an alternative time that is both reasonable and within 5 working days of the original hearing and (2) unfair dismissal legislation means that employers that are thinking about going ahead with the disciplinary hearing must consider the overall impact this will have on the fairness of procedure. The employer refusing a postponement on the basis of the statutory right to be accompanied, number (1), appeared reasonable as the new date was not within 5 working days of the original hearing. However, the employer did not act reasonably when considering the fairness of the procedure, number (2), as the Employment Tribunal and EAT held that it was not reasonable for the employer to refuse the claimant’s request when considering the overall fairness of the dismissal under section 98(4) Employment Rights Act 1996 (ERA 1996).

This case means that employers will have to take more care when deciding whether to postpone a disciplinary hearing. Although not specifically addressed in the ACAS Code of Practice on Disciplinary and Grievance Procedures, employers should nonetheless take all reasonable steps to allow a particular companion to attend in order to give the employee the opportunity to put their case to the decision maker. There will, of course, be cases where it is reasonable to proceed in the absence of the employee, for example where they are being difficult or trying to inconvenience their employer. There will also be situations where proceedings have gone on for long enough and a decision must be taken. However, none of those situations applied in Talon and no reasonable employer would have refused a further short postponement and gone ahead in the absence of the claimant.

The facts of Talon involved a (misconduct) disciplinary hearing but the same principle would apply to a capability and grievance hearing. Regarding redundancy consultation meetings/ hearings, the ACAS Code of Practice and section 10 ERelA 1999 do not apply. However, whilst there is no legal right to be accompanied at such meetings, as a matter of good practice, employers should agree to a companion attending if the employee requests it. This is because ultimately, it is for the Employment Tribunal, in accordance with section 98(4) ERA 1996 to look at overall fairness and denying an employee the opportunity of being accompanied at the consultation meeting could lead to a finding of unfair dismissal.