How many times can a disciplinary hearing reasonably be postponed?

The Employment Appeal Tribunal (EAT) rejected an appeal from the Employer concerning an Employment Tribunal decision, which held that although the Employer had shown a potentially fair reason to dismiss the Claimant, the actual decision to dismiss was procedurally unfair and fatally flawed with the Respondent refusing to further postpone the disciplinary hearing to enable the Claimant to be supported by her Trade Union representative - Talon Engineering Ltd v Smith UKEAT/0236/17/BA.

The Claimant was employed with the Respondent for 21 years. The Respondent was a medium sized family business specialising in manufacturing motorcycle racing parts. The Claimant was summarily dismissed by the Respondent for misconduct in relation to the Claimant having sent alleged unprofessional emails to someone working in another company with whom the Respondent conducted business with. The Respondent argued that the content of the emails had the potential to bring the Respondent into disrepute and also breach the Respondent’s harassment and bullying policy.

The Claimant brought a claim in the Employment Tribunal for unfair dismissal. The tribunal held the Claimant had been unfairly dismissed. The Respondent refused the Claimant’s request to postpone the disciplinary hearing for two weeks to allow the Claimant’s trade union representative to accompany the Claimant to the hearing. This was however the Claimant’s second postponement request, with her first request being granted due to the Claimant’s annual leave and ill–health. When the Respondent would not postpone the hearing for the second time, the Claimant refused to attend the disciplinary hearing without her union representative and the Respondent went ahead with the hearing in the Claimant’s absence and made the decision to summarily dismiss the Claimant without her being present for the hearing.

The Tribunal Judge commented ‘There will be cases where it is reasonable to proceed in the absence of the employee, for example where she is being difficult or trying to inconvenience her employer. There will also no doubt, be situations where, even without bad faith on the part of the employee, proceedings have gone on for long enough and a decision must be taken. Put shortly, none of those situations applied here… proceedings had not been on foot for a particularly lengthy period and the further delay that would have ensured her attendance was a short one. I took the view that no reasonable employer would have refused a further short postponement’.

The Respondent appealed the tribunal decision to the EAT on the basis the Employment Tribunal had substituted its own views for that of a reasonable employer and had failed to take account of employment relations legislation, which indicates that an alternative time for postponed hearings must “be reasonable, and fall before the end of the period of five working days, beginning with the first working day after the day proposed by the employer”.

The EAT ruled that the tribunal had “properly directed” itself and The Respondent should not have taken the fact that the union representative could not  attend the disciplinary, to mean it had no obligation to consider an adjournment and could proceed with the proposed date for the disciplinary hearing without further consideration. The EAT ruled the tribunal was right to conclude that the Respondent ‘was too impatient and hasty’ in reaching its decision to hold the disciplinary hearing in the Claimant’s absence.

Employers must be wary of refusing to postpone a disciplinary hearing if the chosen companion is not available. An employer needs to give careful thought to an employee’s request for postponement, especially where the postponement would be short and there have already been delays with the process. An employer needs to ask themselves whether their actions are those that a reasonable employer would take, taking into consideration the employee’s length of service and the length of postponement requested.