The claimant was suspended and was invited to a disciplinary hearing which was initially postponed due to sickness and was then rescheduled. The claimant’s union representative was unable to represent her that week and indicated that his earliest availability would be two weeks later. The respondent refused a further request to postpone the disciplinary hearing, arguing that they reserved the right to reject the request as the representative could not attend within five days of the date set.

The meeting went ahead, and the claimant was dismissed for gross misconduct in her absence. The ET held that although there had been a potentially fair reason for dismissal, the dismissal was procedurally unfair and fatally flawed by the refusal to postpone the already once postponed disciplinary hearing.

The EAT rejected the employer’s appeal and held that it was unreasonable for them not to postpone the hearing after the claimant had returned from annual leave for a short period. The employer’s response fell outside the range of reasonable responses and the dismissal was deemed unfair.

Practical Lessons

The EAT here recognised that in some circumstances it will be reasonable to proceed in the absence of an employee, for example where they are being difficult or trying to inconvenience the employer.

Crucially, the employer here was wrong to believe it was under no obligation to consider the adjournment of the hearing as the representative was unable to attend a reconvened hearing within five working days.

If the claim had been for breach of the accompaniment rights under s. 10 Employment Relations Act 1999 (equivalent of Article 12 of the Employment Relations (NI) Order 1999) then the respondent may well have been justified:

“…the employer must postpone the hearing to the time proposed by the worker.

(5) An alternative time must —

(a)be reasonable, and

(b)fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer.”

However, in unfair dismissal cases, such decisions will be judged against fairness principles and whether the employer’s actions fell within or outside the range of reasonable responses available in the circumstances.

https://assets.publishing.service.gov.uk/media/599d7857e5274a28b2940e60/1401960_2016_REASONS.pdf