Deferring disciplinary and grievance hearings beyond five working days – Talon v Smith

The ACAS Code of Practice on Disciplinary and Grievance Procedures has been pretty much constant for a number of years. Personally I think that is a shame as I find it decidedly lacking in vision, and little more than a checklist of what to avoid to prevent a grossly prejudicial decision; less a roadmap to a fair disciplinary and grievance procedure and more some notes on how to avoid a car-crash of a decision.

Although pretty much constant in terms of its content there have been two recent adjustments, both of which interestingly relate to the right of an employee to be accompanied at a disciplinary or grievance decision. Back in 2015 the change related to the right of an employee to choose who accompanied them being an absolute right following Toal v GB Oils in 2013. This year there has been a further change as ACAS has drawn employer’s attention to a new case, Talon Engineering Ltd v Smith  which was heard in 2018.

As it stands paragraph 16 of the Code states:

If a worker’s chosen companion will not be available at the time proposed for the hearing by the employer, the employer must postpone the hearing to a time proposed by the worker provided that the alternative time is both reasonable and not more than five working days after the date originally proposed.

This guidance is based on the statutory language of a worker’s Right of Accompaniment (discussed in more detail here) which give a worker the the right to defer a meeting to a new date within 5 working days if their chosen companion is unavailable. However, the ACAS Code now adds a caveat to this guidance:

When dealing with requests to postpone a disciplinary hearing to accommodate the attendance of a worker’s companion, readers of the Code will wish to be aware of the Employment Appeal Tribunal judgement in the case of Talon Engineering Ltd v Smith.

The case of Talon Engineering Ltd v Smith (2018) is a very useful one for employees to be aware of, particularly where – as happens often – a union representative who has specific knowledge of a case and background is away for more than five days which employers (who know this) have used to ‘railroad’ members to utilise a different union representative less prepared to effectively accompany a member.

The relevant facts in the case are simple enough: the claimant was accused of gross misconduct and was invited to attend a disciplinary hearing, and asked a union official to accompany her. That official agreed but requested to the employer that the meeting me deferred for two weeks, as that was when he was next available. The employer refused the request and held the meeting anyway, which the employee did not attend because of the absence of her union representative. The claimant was dismissed and much of the unfair dismissal case centred on the question of whether the employer was reasonable in refusing the extension.

Although it is not explicit it seems likely that the employer felt justified in refusing the adjournment request because the request was for a longer period than set out in section 10(5) of the Employment Relations Act 1999. This mandates that in the event of a union representative’s unavailability the employer must rearrange for a date within five working days which is proposed by the worker. The EAT helpfully clarified that this is not necessary in an unfair dismissal context (paragraph 22):

The section 10 Employment Relations Act accompaniment rights point is an interesting argument. Section 10 provides a statutory right to accompaniment and a small penalty for non-compliance which is a quite separate right from provisions concerning unfair dismissal: they are two distinct statutory provisions which serve different functions. Section 10 has its source in trade union rights stemming from Article 11 of the European Convention on Human Rights and, broadly speaking, section 98 Employment Rights Act 1996 protects employees with sufficient service from being unfairly dismissed. It is wrong to conflate the two provisions. Whilst a breach of section 10 accompaniment right at a disciplinary meeting which results in the dismissal of an employee could well, and perhaps almost always will, result in a finding of unfair dismissal for an eligible employee, the corollary cannot be right … There is no substitute for applying the actual words of section 98(4) when considering whether a dismissal is fair or unfair.

And so, even when an employee requests an adjournment beyond five working days because of the unavailability of their chosen representative (at least where there is a potential dismissal) a refusal to accommodate this may still be unfair. This of course, is a case by case analysis – had the union representative been unavailable for the next 6 months the unfair dismissal case would most likely have come to a very different conclusion!

However, it is still important, I think, when possible to closely follow the statutory regime in Section 10 and ensure that an actual time within five working days is proposed as an alternative. The reason being that in addition to any unfair dismissal arguments a worker will have a claim form compensation for a breach of their independent right of accompaniment rights as well – which of course extend to many more circumstances than just dismissal cases. In my experience it is surprising just how many employer grievance and disciplinary policies do not actually address the specific rights of a worker under section 10(5) – especially the fact that it is the worker who chooses the alternative date and the employer who must accommodate the worker’s request.