Refusing to postpone a rescheduled disciplinary hearing may make dismissal unfair
When considering an employee’s request to postpone a disciplinary hearing because of the non-availability of their chosen companion, employers should be aware that if they refuse, any dismissal may be unfair even if the refusal itself is not in breach of the right to be accompanied provisions in s10 Employment Relations Act 1999.
S10 provides that an employer must agree to a request to postpone if the suggested rescheduled date is within 5 working days of the original date. In Talon Engineering v Smith, Ms Smith was dismissed for gross misconduct for calling an unnamed colleague a “knob” in correspondence with a customer and subsequently deleting emails. The initial disciplinary hearing was postponed due to her illness and holiday. She asked for the rescheduled date to be postponed for two weeks so that her union representative could accompany her. Her employer refused and she was dismissed.
The EAT upheld the tribunal’s decision that the dismissal was procedurally unfair under the reasonableness test in s98 Employment Rights Act 1996. The employer’s decision fell outside the range of reasonable responses available as it was too impatient and had acted in an over-hasty manner given that the employee had 21 years’ unblemished service and the postponement requested was for a short time.
Key points for employers:
- This was a claim for unfair dismissal. There was no claim for breach of s10. It is important to remember that the right to be accompanied under s10 is distinct from unfair dismissal provisions with its own compensation of up to two weeks’ pay (subject to a maximum of £1016) for non-compliance.
- If the employer is in breach of s10, this is almost always going to make any subsequent dismissal procedurally unfair. However, if the employer is not in breach of s10 this does not mean that any dismissal is necessarily fair. The tribunal will look at whether the employer acted reasonably in dismissing.
- Employers should consider any request to postpone in the overall context. The EAT recognised that in some cases it is appropriate to refuse a postponement request, for example, where the employee using it as a delaying tactic or trying to inconvenience the employer or even where there is no bad faith but there has already been a long delay.
For more information, please contact Nick Hurley.
Our thinking
IBA Annual Conference
The IBA heads to Miami for its 2022 Annual Conference bringing together thousands hundreds of lawyers from around the world.
Clare Davis
Clare Davis writes for Personnel Today on hot weather and employment law
Hot summers, hot desks – employment law advice on working through heatwaves
Carolyn Davies
New industry group aims to build sustainability skills in the construction sector
Michael Powner
Barrister with gender critical beliefs discriminated against by chambers
An employment tribunal has found that the barrister, Allison Bailey was discriminated against because of her gender critical beliefs.
Briony Richards
Calculating holiday for Part-Year Workers - why the method matters
We summarise the methods of calculating holiday pay and a court decision.
Nick Hurley
The Guardian quotes Nick Hurley on the recent Supreme Court holiday pay ruling
"It is one of the few examples of a situation where a part time worker is treated more favourably than a full time worker..."
Nick Hurley
Part-year workers favoured in Supreme Court holiday pay ruling
The Supreme Court looks at how holiday pay should be calculated for someone who works part of the year but has a permanent contract.
Michael Powner
Gender critical belief – finding of discrimination
We look at the contrasting outcomes of cases dealing with discrimination claims.
Anne-Marie Balfour
Protect your connections
In an employment context, employers in the life sciences sector can protect their businesses in a number of ways.
Rose Carey
Could the UK’s Life Sciences Vision be restricted by its Immigration Policy?
We explore some of the visa options that may be open to businesses in the sector and their relative pros and cons.
Briony Richards
AI and HR - How can employers reduce the risks associated with using artificial intelligence to help manage their workforce?
If they are not mindful of the risks associated with AI, employers may find themselves in breach of employment and data protection law.
Sophie Clark
Are workers entitled to the Bank Holiday off for the Queen’s Jubilee? Don’t bank on it!
Nick Hawkins
Nick Hawkins writes for Employment Law Journal on demystifying employment contracts
Key considerations for drafting effective post- termination restrictions
Kelvin Tanner
Brexit: Implications for Immigration
Find out what you need to know about what Brexit means for you, your workers and your organisation.
Rose Carey
Is the UK open for business? A discussion with the Home Office
We hosted an immigration webinar with the policymakers from the Home Office.
Rose Carey
Relocating to the UK – Post Tier 1 (Investor)
The UK government closed the Tier 1 Investor visa route with immediate effect on 17 February 2022.
Lesley O’Leary
Briefing publishes Lesley O’Leary 's comments on hybrid working and the impact on collaboration
Briefing publishes Lesley O’Leary 's comments on hybrid working and the impact on collaboration
Emily Chalkley
How to tackle a large Gender Pay Gap
Nick Hawkins
Nick Hawkins writes for Employment Law Journal on demystifying employment contracts
Nick Hawkins explains the key legal principles that govern contracts of employment.
Michael Powner
Michael Powner and Emily Chalkley write for People Management on who pays the price for vicarious liability
Michael Powner and Emily Chalkley explain whether an employer should ever be liable for wrongdoing committed by their employees.