How to make sure disciplinary hearings are fair

Refusing to postpone a hearing to allow an employee to be accompanied can have dire consequences for employers, as Rachel Ashwood and Tori Cure explain

Handling disciplinary procedures is a common occurrence in today’s workplace, yet understanding how to conduct such procedures fairly is crucial. 

Imagine the situation – you’ve organised a disciplinary hearing and it’s already been postponed once at the employee’s request. You suggest a new time, but the employee now requests a second postponement to enable their union representative to attend. You want to deal with the situation as quickly and fairly as possible. What are your options? The recent case of Talon Engineering Ltd v Smith provides some answers.

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 employment tribunal held that the dismissal decision was procedurally unfair and ‘fatally flawed’ by Talon’s refusal to postpone the disciplinary hearing, to allow Mrs Smith to be represented by her trade union representative. It found in favour of the employee. 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. 

Talon appealed unsuccessfully to the Employment Appeal Tribunal, which agreed with the tribunal’s earlier ruling that Talon acted unreasonably by not postponing the disciplinary hearing. 

The key take-away points from this case are:

Disciplinary hearings do not need to be postponed indefinitely

Employees cannot keep asking for their disciplinary hearing to be postponed, to allow for their chosen representative to attend. While employers must act reasonably when considering if a hearing should be postponed at the request of an employee, there comes a point where employers may legitimately decide the disciplinary hearing should go ahead.

Reasonableness is key 

When convening disciplinary hearings, employers must act reasonably, taking into account the relevant circumstances. Where an employer is faced with an employee who is ‘reluctant’ to proceed with the disciplinary process, it may be reasonable to convene the meeting without the employee being present.

An employee has a statutory right to be accompanied 

The Employment Relations Act 1999 provides employees with a statutory right to be accompanied to disciplinary meetings and sets out what employers must do if an employer cannot be accompanied to the initial hearing. However, complying with these provisions alone does not automatically make a dismissal fair.

Follow the ACAS code on disciplinary and grievance procedures 

Employers must remember to act in accordance with the Acas Code – which tribunals will take into account when determining relevant cases. 

Rachel Ashwood is senior counsel and Tori Cure a trainee at Taylor Vinters