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Case law: Employers should be wary of continuing disciplinary hearings when employee does not attend

Employers should resist pressing on with disciplinary hearings when the employee (or their union rep) does not attend if it could be unreasonable to do so, otherwise they risk an unfair dismissal claim.

November 2018

This update was published in Legal Alert - November 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee of 21 years’ standing sent an email to a customer referring to one of her own colleagues as a "knob" and "knobhead". When her employer found out, it suspended her and invited her to an investigatory meeting. The meeting recommended that there should be a disciplinary hearing.

The employee said she wanted a trade union rep to accompany her at the hearing, but there was a delay of several weeks because she was ill and on annual leave. A date was fixed, but it transpired that the union rep was unavailable for several weeks.

There are rules saying that if a disciplinary hearing has to be adjourned because an employee’s union rep is not available, the employee can suggest a fresh date that is not more than five working days later. If that date is reasonable, the employer has to schedule the hearing for that date.

The employee had not suggested a date during the five days after the proposed date, so the employer decided to press on with the hearing anyway. The employee refused to attend without the rep. In her absence, the employer summarily dismissed her for gross misconduct. Her appeal failed and she claimed unfair dismissal.

The Employment Tribunal found that the employer’s insistence on pressing on with the hearing without either the employee or the union rep meant the procedure was unfair. The dismissal was therefore unfair.

However, sometimes it was reasonable to continue in that way, for example, where there was bad faith on the employee’s part, or non-attendance was a deliberate attempt to inconvenience the employer – but that had not been the case here. Generally, employers should take all reasonable steps to ensure employees were present at disciplinary hearings so they could present their side of events.

The Employment Appeal Tribunal (EAT) agreed. It said employers had a duty to act reasonably, and the employer had failed to discharge this duty when it refused to allow a short delay to the hearing. This overall duty to act fairly overrode any procedural or technical rules in this respect, such as the five-day rule. The EAT went on to provide a useful checklist of issues relevant to whether or not an employer could reasonably adjourn a disciplinary hearing:

  • the seriousness of the alleged act
  • the employee’s length of service
  • whether the disciplinary process has been unnecessarily drawn out
  • the reason for the request to delay/postpone
  • whether the delay is reasonable
  • whether a reasonable employer would refuse the request
  • whether dismissal is a possible/likely outcome.

Operative date

  • Now

Recommendation

  • Employers should ensure they do not press on with disciplinary hearings when the employee (or their union rep) does not attend, if that could be unreasonable.

Case ref: Talon Engineering Limited v Smith UKEAT/0236/17/BA

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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