It has long been the case that employees who are the subject of disciplinary proceedings are entitled to be accompanied at a disciplinary hearing by a trade union representative (even if no trade union is recognised) or a colleague.
Until the last few years, employers felt able to limit the employee’s choice of companion in certain circumstances, such as where they felt that the companion was too involved in the disciplinary matter, or where the presence of the companion might prejudice the proceedings.
However, in a 2013 case (Toal and another v GB Oils Ltd), the Employment Appeal Tribunal (EAT) clarified the matter, stating that the employee’s right to a companion is absolute, and that an employer cannot refuse a request even where the companion may prejudice the hearing. ACAS soon after updated its code to reflect that position.
The legislation on this topic does set some limits on employees. For example, employers are often faced with a situation where an employee’s companion is not available at the scheduled hearing time. In that event, the legislation allows the employee to request an alternative time, but the new date has to be within five working days of the original date.
However, while this may be helpful to employers in preventing an employee from delaying indefinitely, caution must still be exercised when sticking too closely to the five day rule, as the employer in this update discovered.
The facts of the case
Ms Smith worked for her employer for 21 years and had a clean disciplinary record. When her employer discovered that she sent emails to a colleague, using inappropriate language to describe a customer, it commenced disciplinary proceedings against her.
The disciplinary hearing was originally scheduled for 5 September, but due to illness and holidays it couldn’t proceed on that date, and was instead rescheduled to 29 September. Ms Smith’s chosen companion was unable to attend on that date, but stated that they could attend on a date seven working days later.
The employer refused to postpone the hearing until that date since it was later than the five working days allowed by the legislation, and told Ms Smith that the hearing would go ahead on 29 September as planned. Ms Smith refused to attend the hearing without her chosen companion, and the employer decided to proceed with the hearing in her absence.
Having done so, the employer made the decision to dismiss Ms Smith, who then claimed unfair dismissal.
The ET and EAT’s decision
The Employment Tribunal (ET) found that, although Ms Smith’s employer had a potentially fair reason for dismissing her (i.e. her misconduct), the fact that it refused to allow the postponement meant that the disciplinary process was flawed. In short, the dismissal was substantively fair, but procedurally unfair. As both substantive and procedural fairness are required, the ET found that Ms Smith was unfairly dismissed.
On appeal, the EAT upheld the ET’s decision and stated that no reasonable employer would have refused to postpone for the seven working days requested, particularly as it was only two working days longer than allowed by the legislation.
The EAT noted that the employer was not technically in breach of the legislation on allowing a companion, but that did not prevent the EAT from agreeing with the ET that the disciplinary process was flawed.
What does this mean?
This case is a stark reminder that one of the cornerstones of the law on unfair dismissal is that the employer must act reasonably in all the circumstances. That duty applies to the entirety of the disciplinary proceedings, including the investigation, disciplinary hearing and any appeal.
It also makes it clear that the ET takes a dim view of an employer acting overly rigidly, even where legislation may suggest that it can do so, and that following the letter of the law won’t necessarily mean that a disciplinary process has been conducted reasonably.
What is helpful to employers is that the ET noted that there will be circumstances in which it is appropriate for the employer to proceed in the absence of the employee. For example, if the employee is acting vexatiously or unreasonably refusing to engage in the process, or if there have already been a number of avoidable delays, it may be safer for an employee to make a decision without the employee present.
Clearly, those examples didn’t apply to the present case. Had the employer simply allowed the hearing to take place on the date requested, it is likely that Ms Smith would have lost her case, as a finding was made that the employer had good grounds for dismissing her.
Perhaps the main lesson to be learned from this therefore is that there can be more risk in trying to bring proceedings to an end too quickly, and taking the time to get things right is generally the safer route.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.