Dear Peter
We employed an employee for 20 years. She had been invited to a disciplinary hearing, which was then postponed for three weeks as a result of a period of sick leave followed by annual leave. The rescheduled hearing was due to take place after that, but her trade union representative was unavailable on that date and for a further two weeks. We refused a further request to postpone the hearing, on the basis that it would result in an unacceptable delay and that we were only required to agree to a postponement of up to five days under the provisions of section 10(5) Employment Relations Act 1999 (right to be accompanied to a disciplinary hearing). The disciplinary hearing went ahead in the absence of both the employee and her trade union representative, and the decision was reached to summarily dismiss her as her actions constituted gross misconduct.
We have heard from ACAS that she intends to bring a claim for unfair dismissal. She is saying that it was not reasonable in the circumstances to proceed with the disciplinary hearing in her absence. We should also have allowed a further postponement of the hearing to allow her representative to accompany her.
Peter replies:
Workers whatever their length of service, have a statutory right to be accompanied at disciplinary hearings by either a work colleague or their trade union representative. Workers can propose an alternative date for the hearing if their chosen companion is unavailable. Provided the alternative time proposed by the worker is reasonable, and within five working days of the originally proposed date, the employer must postpone the hearing.
However, a Tribunal would be entitled to conclude that it was unreasonable for the respondent not to postpone the hearing for a further short period of time. Ultimately, it is for the Tribunal, in accordance with the Employment Rights Act 1996, to look at overall fairness. The statutory provisions should not act as a fetter on the Tribunal’s discretion to reach a finding that a dismissal was unfair. Dismissal in the employee’s absence is likely to be a gross over-reaction on the part of the employer, particularly in view of her length of service. A failure could mean that the dismissal is unfair on procedural grounds.
A Tribunal will distinguish the circumstances of those employees who are clearly trying to prolong matters unnecessarily or acting in bad faith, and situations where the process has been going on too long. I understand your frustration and desire for resolution, but sometimes you just have to be extra patient to be fair. In my experience, Trade Union Officials are never available at ‘short notice’, but you just have to work around that (within reason).
Employers should always consider a request for a postponement of a disciplinary hearing on its merits, even if it is for a period of more than five days. If an employee being disciplined asks for a postponement of a disciplinary hearing, the employer should act reasonably in those circumstances.
The obligation to act reasonably and carry out a fair procedure will consider every part of the dismissal process, including whether the employee has been reasonably afforded the opportunity to be accompanied at disciplinary hearings in order to encourage their attendance and participation. Any decisions that are taken too hastily, or without due course, may lead to a finding of unfair dismissal.
You should seek to negotiate a conclusion based on the fact that if you had a very good reason to dismiss, then it would not be just and equitable to pay her all that she might otherwise get on the basis of her contributory conduct, and that had you done things properly, it would have been fair.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
