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.