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Woman who derided ‘knob head’ colleague in work emails was unfairly dismissed, EAT rules

17 Aug 2018 By Emily Burt

Employer was ‘entitled and hasty’ in refusal to postpone disciplinary hearing 

An employee of a motorcycle manufacturer who was fired after she called one of her colleagues a ‘knob head’ over workplace email was unfairly dismissed, the Employment Appeal Tribunal (EAT) has upheld. 

Talon Engineering’s decision to dismiss Mrs V Smith was found to be unreasonable because of its refusal to postpone her disciplinary hearing for a second time so a particular union representative could attend. Bristol Employment Tribunal held this rendered the dismissal “unfair procedurally and fatally flawed”. 

Smith worked in product and systems manufacturing at the organisation between 1994 and 30 September 2016. She was dismissed for gross misconduct after sending a series of emails to a contact in another trading partner company, in which she referred to an unnamed colleague as a ‘knob’ and a ‘knob head.’ 

Smith’s initial disciplinary hearing was postponed as she was unwell, which was followed by a period of annual leave. She was invited to a rearranged disciplinary hearing 10 days later on 29 September 2016, but her representative from trade union Unite was unavailable until two weeks later. 

Talon Engineering refused to postpone the hearing a second time, arguing further delay would cause a greater strain on Smith and the staff covering her work. Smith subsequently refused to attend the hearing, so the organisation proceeded without her and she was summarily dismissed. Although an appeal hearing occurred, this was only to see if there were good reasons to interfere with the decision, which the organisation decided against. 

Bristol Employment Tribunal concluded that no reasonable employer would have dismissed Smith, and that Talon Engineering should have taken steps to postpone the disciplinary hearing. Smith was found to have contributed to her dismissal, so a 15 per cent Polkey reduction was applied to her award. This comprised a basic award of £11,554.69 and a compensatory award of £10,702.59 at a remedy hearing. 

Talon Engineering appealed, arguing the tribunal had substituted its own views for that of a reasonable employer and had failed to take account of employment relations legislation, which stated an alternative time for postponed hearings must “be reasonable, and 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, the EAT ruled the tribunal had “properly directed” itself and Talon Engineering should not have taken the union representative’s inability to attend the disciplinary to mean it had no obligation to consider an adjournment and could proceed with the date without further consideration. The EAT ruled the tribunal was right to conclude that the company behaved in an “entitled and hasty” way in reaching this conclusion.

“This case must be taken as a warning to employers that failures in respect of the right to be accompanied at disciplinary hearings carry a much more significant risk than simply a fixed monetary award,” said Andrew Willis, head of legal at CIPD HR-Inform.

“Case law over recent years has significantly bolstered an employee’s rights when it comes to their choice of companion, but now employers must be wary of refusing to postpone a hearing if the chosen companion is not available. Careful thought should go into a request for postponement in this context, especially where the postponement would be short and the process has already seen delays.” 

Talon Engineering has been contacted for comment. Smith could not be reached for comment.

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