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You’ve invited a staff member to a disciplinary hearing, but they’ve asked to postpone the hearing so their union official can accompany them. Can you refuse? And if you do, will it affect the fairness of your decision?

The law

All employees have the right to be accompanied by a trade union official or a colleague at any disciplinary hearing (which could result in a sanction) or grievance hearing. These rights are set out in the Employment Relations Act 1999.

You don’t have to recognise a union, and your employee doesn’t need to be a member of it either. You also don’t have any say about the suitability of the representative (even if you think they’re a troublemaker).

You should aim to give your employee reasonable notice of any hearing, so they can prepare and find someone to act as a representative if they want one.

Responding to a request to postpone the hearing

Trade unions officials have many demands made on their time and will often ask to postpone meetings. Technically, you only have 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 that you’ve have breached their rights to be accompanied.

It is worth bearing in mind though that they may be able to argue that your refusal was unreasonable and their dismissal is unfair. (They must have worked for you for two years to bring a claim.)

You must therefore act reasonably, and this might mean rescheduling the hearing to a date later than you would have liked.

Real life example

What’s reasonable depends on the circumstances.

For example, in the recent case of Talon Engineering Ltd v Smith, Mrs Smith was unfairly dismissed when her employer refused to postpone a disciplinary hearing for two weeks so she could be accompanied by her union rep. She had worked for the company for over 21 years, and had an otherwise unblemished record.

The Employment Appeals Tribunal made it clear that, although the employer’s refusal to postpone the hearing didn’t breach Mrs Smith’s statutory right to be accompanied, this didn’t mean that her dismissal was fair.

That said – if you breach your employee’s right to be accompanied, any subsequent dismissal is likely to be unfair.

You don’t have any say about the suitability of the representative (even if you think they are a troublemaker).

Compensation

The maximum compensation for breach of the right to be accompanied is limited to two weeks’ pay, currently capped at £1,016 – but in practice, awards are often much less than this.

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. The best advice is to grant any request for a reasonable postponement, even if it means the hearing will take place more than five days after the original date. 

Key Contact

Alan Lewis