Mrs V Smith was dismissed following a workplace email exchange with a colleague in which she called him a ‘k*** head’. Talon Engineering made the decision to dismiss Mrs Smith for Gross Misconduct following a series of emails in which she used the terms ‘k***’ and ‘k*** head’ to refer to a co-worker.
The EAT (Employment Appeal Tribunal) found the decision to dismiss Mrs Smith to be unreasonable due to her employer’s refusal of Mrs Smith’s request to push back the date of her second disciplinary hearing to allow for the attendance of a particular union representative. Having been unwell at the time of her initial disciplinary hearing, Talon Engineering invited her to a second date on 29 September 2016, despite her trade union representative not being available until a fortnight past this date.
Stating that postponing the hearing for a second time would have a further impact upon Smith and the employees covering her job role/responsibilities, Talon Engineering refused Mrs Smith’s request to postpone and proceeded with the hearing in her absence, with her ultimately being dismissed as a result of the hearing.
Bristol Employment Tribunal suggested that any reasonable employer would not have taken Talon Engineering’s approach and instead would have made a further effort to postpone the disciplinary hearing, allowing Mrs Smith to attend with her desired representation. Talon Engineering pushed back with an appeal of the outcome, suggesting that the tribunal didn’t take into account the employment relations legislation that outlined the time proposed for postponing a disciplinary hearing 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”.
The Employment Appeal Tribunal upheld its ruling, stating that Talon Engineering should not have taken the union representative’s inability to attend the disciplinary on the proposed date to mean that they had no obligation to consider a rescheduling and could proceed with the hearing without further consideration. The hasty and pressured manner in which Talon handled this case ultimately led to a basic award of £11,554.69 being awarded to Mrs Smith as well as an additional compensatory award of £10,702.59 at a remedy hearing.
As an employer it is of the utmost importance that an employee’s right to be represented and accompanied at a disciplinary hearing is honoured.
If you need guidance with regards to disciplinary hearings or have concerns related to any issues raised in this article, please don’t hesitate to contact the HPC team today.