Where an employee fails to attend a disciplinary hearing through unforeseen circumstances such as illness, or wishes to adjourn due to their own or their companion's unavailability, a further meeting should be arranged within a reasonable timescale.
The Acas code of practice on disciplinary and grievance procedures, which the tribunals take into account in deciding whether or not a dismissal is fair, state the employer only has to agree to one postponement, if the rescheduled hearing can take place within five working days of the original date. If it falls outside of this period, or the employee has made a previous request, they can't complain the employer has breached their rights to be accompanied.
However, the employee may be able to argue that the employer’s refusal was unreasonable and their dismissal is unfair where they have worked at least two years' in order to bring an ordinary unfair dismissal claim. In other words, following the letter of the law and only allowing a disciplinary hearing to be rearranged at the employee’s request within the strict time limit of 5 days set out in legislation, does not mean that the employer will automatically be considered to have acted reasonably in all the circumstances.
For example, in the case of Talon Engineering Ltd v Smith, the Employment Appeal Tribunal found that an employee, Mrs Smith, was unfairly dismissed when her employer refused to postpone a disciplinary hearing for 11 days so she could be accompanied by her chosen union representative who was unavailable until then. It was relevant in this case that Mrs Smith had worked for the company for over 21 years and had an, otherwise, clean disciplinary record.
The Employment Appeal Tribunal found that, although the employee’s statutory right to be accompanied was met, this did not mean that her dismissal was fair due to the employer’s refusal to postpone the hearing as requested.
The maximum compensation for breach of the right to be accompanied is limited to two statutory weeks' pay, which is currently capped at £1,016.
The maximum compensation for unfair dismissal is capped at £83,682 (or 12 months’ salary if lower) and this poses a much greater financial risk. Furthermore, the tribunal could potentially increase the compensation awarded to the employee by up to 25% if it considers the employer has unreasonably failed to follow the ACAS Code.
Our advice
To reduce the risk of a successful unfair dismissal claim, employers are advised to grant any request for a reasonable postponement where employees have at least two years’ service and their chosen companion is not available on the scheduled hearing date, even where this means the hearing will take place more than five days after the original hearing date.
If you would like to read the Acas code of practice on disciplinary and grievance procedures, it can be found here.