In short, yes it can. So said the Employment Appeal Tribunal (EAT) in the case of Talon Engineering Ltd v Smith EAT/0236/17.
Section 10 of the Employment Rights Act 1999 provides that where an employee is asked to attend a grievance or disciplinary hearing and reasonably requests to be accompanied at that hearing either by a work colleague, a trade union representative or trade union official (‘an approved companion’), this request must be allowed.
Talon Engineering Ltd v Smith
Case Summary
The facts in the aforementioned case were that Mrs Smith worked for a motorcycle manufacturer, Talon Engineering Ltd, and sent an email to a company that Talon dealt with calling one of her colleagues an unpleasant name. Following an investigation in to her conduct, Mrs Smith was called to a disciplinary meeting but her Union rep was unable to attend on the allotted day. Several alternative dates were suggested by Mrs Smith and her rep, the first being 2 weeks ahead. Talon were not willing to delay the hearing to accommodate Mrs Smith’s companion and so it went ahead in her absence. Mrs Smith was found to have committed gross misconduct and was summarily dismissed. She appealed and her appeal was rejected. Mrs Smith then brought a claim in the Employment Tribunal for unfair dismissal.
The Tribunal found that Talon had a potentially fair reason for dismissing Mrs Smith, i.e. conduct, but concluded that no reasonable employer would have refused a further short postponement of the disciplinary hearing and gone ahead in her absence. It was noted that the further delay to ensure Mrs Smith’s attendance and grant her the opportunity to be heard and accompanied would have been a short one.
Talon appealed to the Employment Appeal Tribunal (EAT), however, the EAT upheld the finding of unfair dismissal. The EAT also considered the right to be accompanied under section 10 of the ERA 1996, which says that the employer must postpone the hearing to allow the employee’s chosen companion to attend, if the proposed alternative is within 5 working days.
The EAT found that Talon appeared to believe that because Mrs Smith’s union rep suggested dates which did not fall within 5 working days, they were not obliged to reschedule the hearing.
Comment
This case highlights the fact that the right to be accompanied and the law on unfair dismissal are two different statutory points. If Mrs Smith’s claim were for a breach of her right to be accompanied, then Talon could not be criticised for failing to reschedule the hearing given Mrs Smith’s inability to attend a reconvened hearing within 5 working days.
However, in a claim for unfair dismissal, the ET was entitled to find that it was unreasonable of Talon not to postpone the hearing in these particular circumstances.
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