Postponing a Disciplinary Hearing

31 Aug

The Employee Relations Act 1999 provides employees with the right to be accompanied at disciplinary and grievance hearing and the right to postpone a hearing, where representation is unavailable.

Where an employee has requested to be accompanied, and where his/her chosen companion isn’t available at the time, employers must postpone the hearing to a time proposed by the employee. To rely on this right, the alternative time must be reasonable and fall within five working days of the date proposed by the employer.

However, in the recent case of Talon Engineering Ltd v Smith, the Employment Tribunal found that it was unreasonable for the employer to refuse to postpone disciplinary proceedings on the basis that the new proposed date was outside of the five-day period of the original date proposed by the employer.

Talon Engineering appealed to the Employment Appeal Tribunal (EAT), which rejected their appeal and agreed that it was unreasonable for the employer to refuse to postpone the disciplinary, as long as the postponement request was limited to a reasonable length of time.

Importantly, the EAT highlighted that although the employer had adhered to current legislation, the case was not to consider whether there was a breach of the Employee Relations Act, it was to discover if the employee’s dismissal was unfair.

It is therefore important to remember that employers should consider the response of a reasonable employer when handling any form of dismissal, even if statute provides for a less ‘reasonable’ minimum response.

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