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Warning: Refusal to postpone a disciplinary hearing may result in unfair dismissal ruling
An employee of a motorcycle manufacturer was dismissed after she used derogatory terms to refer to one of her colleagues in a workplace email. Ms Smith took her employer, Talon Engineering, to an employment tribunal complaining that she had been unfairly dismissed because it had refused to postpone her disciplinary hearing for a second time, so that a particular union representative could attend. Both the Tribunal and the Employment Appeal Tribunal (EAT) agreed with her.

Ms Smith worked for Talon Engineering from 1994 and to September 2016. She was dismissed for gross misconduct because she sent a series of emails to a contact in another trading partner company, in which she referred to an unnamed colleague in derogatory terms.

Her initial disciplinary hearing was postponed because she was off sick, and this was followed by a period of annual leave. She was then invited to a rearranged disciplinary hearing 10 days later at the end of September 2016, but her representative from trade union Unite was not available until two weeks later.

Her employer refused to postpone the hearing a second time, arguing that further delay would cause a greater strain on Ms Smith and the staff covering her work. But she refused to attend the hearing, so the organisation proceeded to hear the case without her and she was summarily dismissed. Although an appeal hearing occurred, this was only to see if there were good reasons to change the decision. They did not find any and so the original decision was confirmed.

The EAT found that Talon Engineering’s decision to dismiss Ms Smith was unreasonable because of its refusal to postpone her disciplinary hearing for a second time and confirmed the original Tribunal’s view that this had rendered the dismissal “unfair procedurally and fatally flawed.” It said that the employer should not have taken the union representative’s inability to attend the disciplinary to mean it had no obligation to consider an adjournment and could proceed with the date without further consideration. The EAT ruled the original tribunal was right to conclude that the company behaved in an, “entitled and hasty” way in reaching this conclusion.

Although the final award was reduced because Ms Smith had contributed to her own dismissal by her actions, the employer was still faced with paying an award to her of over £22k.

So, if you are faced with this situation, it is important not to dismiss a postponement because of the unavailability of a chosen companion as unreasonable – a few days extra may save you a lot of money!
Posted on 21 Aug 2018

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