In Talon Engineering v Smith, Ms Smith was dismissed for gross misconduct for calling an unnamed colleague a “knob” and “knobhead” in emails with a key customer contact and for subsequently deleting emails. The initial disciplinary hearing was postponed due to her illness and holiday. She then asked for the rescheduled date to be postponed for two weeks so that her union representative could accompany her. Her employer refused and she was dismissed.
The EAT upheld the tribunal’s decision that the dismissal was procedurally unfair because, having postponed the disciplinary hearing once, the company had acted unreasonably in refusing to postpone it again for a short period to allow the claimant’s chosen companion to accompany her. This decision is of some concern to both employers and employment lawyers. The statutory right to be accompanied gives workers a right to have a disciplinary hearing rearranged to accommodate a companion if it takes place within five working days. An employer might reasonably, therefore, anticipate that a refusal to permit a second request for a postponement for some two weeks would be deemed fair in all the circumstances. However, in this case, the EAT made clear that this is not necessarily so, as the right to be accompanied and the right not to be unfairly dismissed were two separate legal rights.
Employers should, therefore, act with caution following this case when considering requests for postponements and fully justify any refusal in writing, taking into account all the surrounding circumstances of the case. Where an employee is clearly trying to use the postponement as a delaying tactic or trying to inconvenience the employer, a refusal is likely to be reasonable. Any refusal to agree to a postponement within 5 working days of the original hearing to permit a companion or trade union representative to accompany the employee will always compromise the fairness of the procedures and give rise to a separate statutory complaint.