Case Review: Talon Engineering Ltd v Smith UKEAT/0236/17/BA

The facts

Mrs Smith sent an email to a customer (which she later tried to delete) referring to a colleague using insulting language. She was suspended on 29 July and invited to a disciplinary hearing on 5 September. This was postponed due to sickness and annual leave and rescheduled to 29 September. Mrs Smith wanted to be represented by her union representative.

Her representative was unavailable for 2 weeks and therefore Mrs Smith sought to delay the hearing until he could attend.. The employer refused, stating they had the right to reject the request because the union representative could not attend within five days of the date set. Mrs Smith responded that she would not attend the meeting without her chosen union representative. The employer continued in her absence and decided to summarily dismiss her. Mrs Smith appealed but the decision was upheld. She claimed unfair dismissal.

The decision

A 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

In finding that the employee was unfairly dismissed, the Employment Appeal Tribunal essentially warned employers that this scenario requires them to bear in mind two distinct employment laws.

On the one hand, the statutory right to be accompanied allows a worker to propose an alternative time that is both reasonable and within five working days of the original hearing. On the other hand, unfair dismissal legislation means that employers that are thinking about going ahead with the disciplinary hearing must consider the impact of this on the overall fairness of the procedure.

On the facts the Tribunal stated that the dismissal was not a decision a reasonable employer would have arrived at, especially due to the claimant’s long service.  It did state that although there will be cases where it is reasonable to continue in the absence of an employee because they are being difficult or proceedings have gone on for too long, this was not the case here. In absence of any misbehaviour by the claimant and the fact that the current delays were short, a reasonable employer would not have refused a further short delay and proceeded in her absence.