An important decision relating to union members being accompanied by their reps at disciplinary hearings has been made by an Employment Appeals Tribunal (EAT).
The ruling effectively means that when an employer refuses to delay a hearing and an employee is subsequently dismissed, it could lead to a decision of unfair dismissal, even when the employer hasn’t breached the legal right to be accompanied.
In this case the original Employment Tribunal in 2017 found that the employee, Mrs Smith, had been unfairly dismissed at a hearing in her absence, after the employer, Talon Engineering Ltd, refused permission to delay the hearing for nearly two weeks until her union rep was available. Talon appealed the ET decision but lost the appeal and the unfair dismissal decision was upheld.
Mrs Smith, who had 21 years of unblemished service with the firm, was sacked in 2016 after referring to an unnamed colleague in unflattering terms in an email to a company contact, who was also a close friend. She had tried to delete the messages but they were retrieved by the employer.
After deferring the first scheduled disciplinary meeting due to the employee’s sickness and subsequent annual leave, a second request for a delay was made based on to the rep’s lack of availability. The employer refused the request and when Mrs Smith opted not to attend without her rep she was summarily dismissed for gross misconduct in her absence. The tribunal found that she was “not at fault in failing to attend the hearing”.
Although the requested delay was longer than the five working days set out by law, and the employer didn’t actually breach the legal right to be accompanied, the EAT judge ruled that they had been “unduly hasty in not accommodating a further short delay to enable the Claimant to be represented”.
Section 10 of the Employment Relations Act 1999 gives workers the right to be accompanied by a fellow worker or union official to all meetings that may result in disciplinary sanctions. If the worker’s companion is unable to attend the disciplinary meeting, the employee can ask for the meeting to be postponed. The employer must agree if the alternative time requested is reasonable and within five working days after the date originally proposed.
The tribunal held that although her employer had shown a potentially fair reason for dismissal, its decision to dismiss was procedurally unfair because of its refusal to postpone the hearing.
The EAT agreed that the employer’s response fell outside the range of reasonable responses and the dismissal was unfair.
The employer’s claim that Mrs Smith had breached the company’s bullying and harassment policy was also thrown out.
The judge agreed with Smith’s lawyer’s description of the email as “venting to a close friend about an unnamed colleague thought by the Claimant not to be pulling his or her weight, in other words an everyday workplace moan”.
“It is not clever and it is not funny, and it may amount to a breach of the policy, but the Tribunal was entitled to conclude that it did not amount to serious gross misconduct that puts the business reputation of the [company] at risk” said the EAT judge.
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