The Right to Accompaniment and Unfair Dismissal

I have discussed the right of accompaniment on this blog before in the context of the worker’s right under section 10 of the Employment Relations Act 1999. One component of that right is an explicit right that if a worker’s chosen companion at a formal grievance of disciplinary meeting is unavailable then the worker can put forward another time and date within five working days of the meeting and the employer is normally required to accommodate that alternative time. If they do not then a worker could pursue a tribunal claim for that specific breach but also potentially that that failure also made the dismissal unfair.

In the context of this relatively common situation the decision of the Employment Appeal Tribunal in Talon Engineering Ltd v Smith [2018] IRLR 1104 EAT  offers a helpful clarification.

The relevant facts of the case were that the worker (Smith) was accused of misconduct and was invited to attend a disciplinary meeting. Mrs Smith wanted to be accompanied by her Unite representative and informed her employer of this. However, the union representative was unavailable for two weeks and suggested a three dates date for a meeting. This was not therefore a request for an adjournment under section 10 of the Employment Relations Act 1999 as the proposed date was more than five working days in the future.

The employer refused to defer the meeting until the rep was available and, because of that refusal, Mrs Smith refused to participate in the dismissal hearing. Mrs Smith was consequently summarily dismissed.

The EAT upheld the employment tribunal’s decision that the even though there had been no breach of Mrs Smith’s rights under section 10 of the Employment Rights Act 1999 it did not follow that the decision to refuse the adjournment request was fair for the purposes of the different unfair dismissal test in section 98(4) of the Employment Rights Act 1996. In the particular circumstances the refusal of the adjournment made the dismissal unfair.

Of course, this does not mean the employer must always agree to an adjournment if a rep is unavailable but it does show that the knee-jerk reaction of employers such as that displayed in Talon  to refuse any adjournment that does not meet the section 10 minimum requirements can run an employer into difficulties. Talon is a useful case for a rep to be aware of to equip them to  question such knee-jerk reactions.