Failure to postpone a disciplinary case could lead to unfair dismissal
Failure to postpone
Failure to postpone a disciplinary case could lead to unfair dismissal

Failure to postpone a disciplinary case could lead to unfair dismissal

Failure to postpone a disciplinary case could lead to unfair dismissal

An Employment Appeals Tribunal has deemed a dismissal unfair after the employer failed to allow the hearing to be postponed to allow for the employee’s union representative to be available.

The Employment Relations Act requires that employers allow a postponement of up to five days, however in this case the union representative was not available within that time frame.

The employer, Talon Engineering Ltd., decided to go ahead with the hearing and decided to dismiss the employee in her absence.

The facts of the case

The employee, Mrs Smith, faced disciplinary proceedings for sending an inappropriate email to a customer, calling an unnamed colleague a ‘knob head’ and ‘knob’. She then tried to delete some of those emails to conceal her actions.

Mrs Smith was suspended and invited to a disciplinary hearing, which was postponed due to sickness and annual leave.  When it was rescheduled, the employee chose to be represented by her trade union representative from Unite union. Her representative sent an email stating that he was unable to represent her on the proposed date and his earliest availability would be just under two weeks later.

The employer refused the request to postpone it further, maintaining they had the right to reject the request because the union representative could not attend within five days of the date set.

Mrs Smith responded that she would not attend the meeting without her chosen trade union representative and as such, the employer continued in her absence. It was decided that the employee would be dismissed for gross misconduct, a decision which was upheld on appeal.

She lodged a claim for unfair dismissal at an Employment Tribunal.

The Employment Tribunal decision

The Employment Tribunal determined that, whilst there would be instances where it would be reasonable to proceed in the absence of the employee, this was not one of those cases.  In the tribunal’s opinion, the employee was not being difficult or attempting to inconvenience her employer and a further delay of less than 2 weeks would not significantly impact the employer.

They stated ‘There had been no sort of misbehaviour on the part of Mrs Smith, 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… no reasonable employer would have refused a further short postponement and gone ahead in the absence of Mrs Smith.’ Therefore, the dismissal was procedurally unfair.

The Employment Appeals Tribunal decision

The Employment Relations Act, which provides the right to be accompanied, states that if a trade union representative cannot attend, the employee is entitled to have the hearing postponed and to have an alternative date within five days of the hearing. The employer argued that since they were not in breach of this, it could not render the procedure unfair. The EAT disagreed and noted that the claim being made against the employer was for unfair dismissal, not a breach of the accompaniment rights.

It concluded that “The Tribunal was entitled to conclude that it was unreasonable for the Respondent (employer) not to postpone the hearing after the Claimant (employee) had returned from annual leave for a short period of time and that the Respondent’s response fell outside the range of reasonable responses available to an employer and the dismissal was unfair.’

PlusHR response

The employer should not automatically restrict the employee’s right to postpone a disciplinary hearing to the five days specified in the Employment Relations Act.  They should consider what is reasonable in those specific circumstances, taking into account all relevant factors of the case and should only proceed in the employee’s absence where there is genuinely no viable alternative.

As this case proves, failure to do this could result in a dismissal which is deemed unfair on procedural grounds.

If you would like advice on an employment matter, please contact: This email address is being protected from spambots. You need JavaScript enabled to view it. or call 0203 828 7592.

Workers have the right to be accompanied by a fellow worker or trade union official to all meetings that may result in disciplinary sanctions. Disciplinary sanctions could range from a written warning, final warning, dismissal or other types of action short of dismissal, such as demotion.

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.

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