15 October 2018 by Crystal HR & Payroll Ltd
Are you aware of employees rights to be accompanied at a disciplinary hearing?
A recent case highlights the importance of adopting a flexible and fair approach when dealing with a request from an employee to be accompanied at a disciplinary hearing and how failing to do so can render a fair dismissal unfair.
In the case of Talon Engineering v Smith, the Company suspended Mrs Smith following allegations that she had made inappropriate comments, about other members of staff, in an email that she had sent to a customer. There was also evidence that she had attempted to delete some emails between her and the customer, which her employer had been able to retrieve. It was alleged that the contents of the various emails had the potential to bring the Company into disrepute and to breach the Company’s bullying and harassment policy.
The Company invited Mrs Smith to a disciplinary hearing which, had to be postponed because of her sickness, followed by a period of annual leave. Throughout the disciplinary process Mrs Smith had made it clear that she intended to be represented by her trade union.
Her trade union representative wrote to the Company explaining that as he was at a conference in London, he would not be able available to represent his member for another two weeks and provided the Company with dates for his availability.
The Company refused to postpone the disciplinary hearing on the basis that, given the considerable period of time which had elapsed since they suspended Mrs Smith and the impact on the business, any further delay would add strain to both Mrs Smith and staff covering her work.
Mrs Smith wrote to the Company explaining that she was not prepared to attend in the absence of her chosen representative. The Company proceeded in her absence and decided to summarily dismiss her.
The dismissal letter set out three following allegations which they confirmed had been found as proven:
“firstly, that the content and professionalism of the emails to a key contact, Ms Syrad, had the potential to bring the company into serious disrepute; secondly, that such comments about a colleague are abusive and disrespectful and amount to a breach of the company’s bullying and harassment policy; and thirdly, that the deletion of the metrics, or some of the metrics, emails was a deliberate attempt to conceal their contents and that in so doing she had removed sensitive company information”.
The Employment Appeal tribunal held that whilst there was a potentially fair reason for dismissal, the decision to dismiss was unfair procedurally and fatally flawed by the refusal of the Company to postpone the disciplinary hearing, to enable the employee to be represented by her trade union official.
Another key factor the tribunal took into account when reaching their decision, was that Mrs Smith had had an unblemished career of 21 years, and that this should have been taken into account when arriving at a final decision.
This is a classic example of where you may have strong grounds to dismiss an employee, but if you fail to follow a fair procedure you face the risk of the dismissal being judged to be unfair.
So How Can We Help You?
We can help by:
- Ensuring that you fully understand the rights of an employee to be accompanied
- Advising what types of meetings include a right to be accompanied
- Ensuring that If the companion is an official of a trade union you are aware to check whether:
- They are a paid official or
- An unpaid official of a trade union who is certified as competent to act as a companion
- Identifying if there are any special circumstances where you may consider allowing the employee to be accompanied by someone outside recognised companions e.g. if you are dealing with a young or vulnerable worker
- Ensuring that rights to be accompanied are set out in your employment documentation.
This article is a guide only and not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employment law, please do not hesitate to contact us.