The Employment Appeal Tribunal (EAT) has upheld a Tribunal’s finding that an employer’s decision to refuse delaying a disciplinary hearing to allow an employee’s trade union representative to attend, made the decision to dismiss procedurally unfair.

Section 98 of the Employment Rights Act 1996 (section 98) requires employers to show that a dismissal of an employee (with over two years’ continuous service) is both substantively and procedurally fair. This is the primary test that a Tribunal will consider in determining an unfair dismissal claim. The employer argued that the Tribunal had failed to take account of section 10 of the Employment Relations Act 1999 (section 10), which provides employees with a statutory right to be accompanied to a disciplinary or grievance hearing. Section 10 states that an employer must consider postponing a hearing if any alternative proposed date by the employee falls within five days of the original hearing date. In this case, the employee’s proposed alternative date for the hearing was 10 days after the original hearing date and the employer believed that it was under no obligation to consider the adjournment of the hearing for that period of time.

The Tribunal did not refer to section 10 in reaching its decision and determined that although the employer had shown a potentially fair reason for dismissal under section 98, the employer’s refusal to postpone the hearing date was procedurally unfair in the circumstances. The EAT, in upholding the Tribunal’s decision, was clear in stating that section 10 does not fetter the Tribunal’s discretion under section 98 when considering the question of the reasonableness of the procedure adopted by the employer.

A postponement may not always be reasonable but it is a worthy reminder that an employer’s overriding obligation is to act reasonably and section 10 cannot be relied upon as satisfying the reasonableness test under section 98.

(Talon Engineering Limited v Mrs V Smith)

If you have any further questions regarding this topic or any employment issues, please contact Elliot Francis – Associate, or any member of the Edwin Coe Employment Team.

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