Case law updates

Refusal to postpone a disciplinary hearing was “procedurally unfair”


In the case of Talon Engineering Ltd v Smith, Mrs Smith, a long-serving employee of Talon Engineering Ltd sent ‘unprofessional’ emails to a contact. She also tried to hide some of these emails from her employer. Talon believed that Mrs Smith’s actions had the potential to bring it into disrepute. Accordingly, Mrs Smith was suspended from her employment, pending an investigation into her conduct.

Due to Mrs Smith’s sickness absence and annual leave, the first disciplinary hearing was postponed. She was then invited to a rescheduled hearing. However, because Mrs Smith’s union representative was unable to attend the rescheduled meeting, she requested that the hearing be postponed again. Talon refused, carried out the meeting in her absence and decided to dismiss her for gross misconduct. She brought a claim for unfair dismissal.

The tribunal held that although her employer had shown a potentially fair reason for dismissal, its decision to dismiss was procedurally unfair because of its refusal to postpone the already once postponed disciplinary hearing to enable Mrs Smith to be represented by her union official:

‘It goes without saying that it is far preferable if an employee such as Mrs Smith attends her disciplinary hearing. It is her opportunity to put her case to the decision maker. All reasonable steps should be taken in order to ensure she can do so. There will be cases where it is reasonable to proceed in the absence of the employee, for example where she is being difficult or trying to inconvenience her employer. There will also, no doubt, be situations where, even without bad faith on the part of the employee, proceedings have gone on for long enough and a decision must be taken. Put shortly, none of those situations applied here. 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.’

On appeal by Talon, the EAT endorsed the tribunal’s view that it was unreasonable for the employer not to postpone the hearing after Mrs Smith had returned from annual leave for a short period of time and that the employer’s response fell outside the range of reasonable responses and the dismissal was unfair. Mrs Smith was awarded a basic award of £11,554.69 and a compensatory award of £10,702.59, albeit reduced by 15 per cent for Mrs Smith’s contribution to her own dismissal and by a further 15 per cent Polkey deduction.