Postponing Disciplinary Hearings

For an employer it is frustrating for a disciplinary hearing to be postponed because of the unavailability of the union officer chosen as a representative by the member of staff. Why not go ahead without the union representative? And if the member of staff then refuses to attend, why not go ahead anyway?

A recent case involving a ‘family’ engineering firm shows why not. The employee concerned had been employed for over twenty years and had an unblemished disciplinary record; until she sent emails to a contact in a company with whom the employer traded, in which she referred to an unnamed colleague in opprobrious and inappropriate language. These emails were said to have the potential to bring the company into disrepute.

She was suspended pending investigation on 26 July. Illness and annual leave imposed a delay. The employer proposed 29 September for a disciplinary hearing but the union representative was not available. He offered 10, 13, 18 October. The employer went ahead with the hearing on the 29 September. The employee did not attend. She was summarily dismissed. An Employment Tribunal found that she had been unfairly dismissed because the process had not been fair.

The employer argued at the Employment Appeal Tribunal (EAT) that Section 10 (4) of the Employment Relations Act 1999 (ERA) applied. This imposes a penalty on an employer if

(a) a worker has a right to be accompanied at a hearing,
(b) his chosen companion will not be available at the time proposed for the hearing by the employer, and
(c) the worker proposes an alternative time

An alternative time must—

(a) be reasonable, and
(b) fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer.

So because the proposed date was beyond five working days from 29 September, it was fair to proceed. The EAT rejected this.

While ignoring the five-day provision might be grounds for an unfair dismissal claim; it did not follow that an employer could hold a hearing in the employee’s absence because a delay was over five days. There might be situations where going ahead without the employee might be fair (where the employee was being obstructive or where the period had been so excessively long that some closure had to be reached) but this not one of them.

Section 98(4) of the Employment Rights Act 1996 applied:

‘the question whether the dismissal is fair or unfair...

(a) depends on whether in the circumstances... the employer acted reasonably or unreasonably..., and
(b) shall be determined in accordance with equity and the substantial merits of the case.

A relatively small proportion of employers might take the view that what Mrs Smith had done would warrant dismissal, particularly in the light of her long service, but the decision to go ahead in her absence conclusively rendered the dismissal unfair. The employer was too impatient and hasty. Patience might have obtained the result desired; which impatience lost.