Julie Dunane CG Professional

Refusing a companion could result in unfair dismissal claim?

Julie Duane, Solicitor Advocate at CG Professional.

Following the case of Talon Engineering Limited v Smith employers should be aware that a refusal to postpone a disciplinary hearing because of the unavailability of an employee’s companion may result in an unfair dismissal claim. 

Section 10 of the Employment Relations Act 1999 provides employees with the right to be accompanied by either a trade union official or work colleague to all meetings which may result in the termination of their employment.  Notably where an employee’s companion is unable to attend the hearing then an employee can ask for this to be postponed and rescheduled to an alternate date within a reasonable timeframe.

The Facts

Ms Smith was involved in an incident whereby she had submitted an email to a customer which used derogatory language in relation to her colleague.  The employee was subsequently suspended on 29th July and invited to attend a hearing on 5th September.  Unfortunately, the hearing did not proceed due to sickness and annual leave and therefore was subsequently rescheduled to 29th September.  The employee notified her employer that she wished to be accompanied by a trade union representative who unfortunately would not be unable to attend on that date and would only be available in two weeks’ time. 

The employer subsequently refused the employee’s request to postpone the hearing and the employee advised that she would not be attending in the absence of her representative.  The employer, therefore, elected to continue with the meeting in her absence and terminated her employment.  The employee appealed the decision, but her dismissal was upheld. 

ET Decision

Although the tribunal held that the employee had a potentially fair reason to dismiss, the Tribunal concluded: “no reasonable employer would refuse a further short postponement and gone ahead in the absence of the employee.” The Tribunal held that the dismissal was unfair.

EAT Decision

The employer subsequently appealed the decision, however, the EAT upheld the decision as they agreed with the ET that the employer’s conduct was unreasonable in not postponing the hearing until her representative could accompany her. 

Points to Note

Employers should, therefore, ensure that they are taking reasonable and pragmatic steps to meetings which could result in the termination of employees.  Where an employee is unable to attend a hearing due to her representative’s diary commitments the employee should seek to accommodate this in the first instance.  A failure to do so could potentially render what would be considered a fair dismissal unfair, due to the employer failing to follow a fair and proportionate process. 

If you have any questions regarding the disciplinary process or regarding the termination of an employee, please do not hesitate to contact a member of the CG Team who would be more than happy to help.