Talon Engineering Ltd v Smith

Compliance with the statutory accompaniment regime in Employment Relations Act 1999 section 10 does not determine whether a dismissal is fair. The tribunal must independently apply the broad reasonableness inquiry in Employment Rights Act 1996 section 98(4).

An employer may therefore dismiss unfairly by unreasonably refusing a short adjournment of a disciplinary hearing so that the employee's chosen union representative can attend, even where the representative's alternative date falls outside the five-working-day postponement right. The question remains whether the employer's conduct fell within the range of reasonable responses.

Contributory fault and a Polkey reduction are separate assessments for the tribunal. Each may require a fact-sensitive percentage evaluation.

The claimant, a long-serving employee, was summarily dismissed for alleged misconduct arising from emails sent to a business contact and an alleged deletion of emails. She had asked for a disciplinary hearing to be postponed for less than two weeks because her full-time union representative was unavailable. The employer refused, proceeded in her absence, and dismissed her.

The Bristol Employment Tribunal held that the dismissal was procedurally unfair. It reduced the basic and compensatory awards by 15% for contributory conduct and made a further 15% Polkey reduction to the compensatory award. It made no adjustment under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.

The employer appealed, principally contending that the Tribunal had substituted its own view and had failed to give effect to section 10(5) of the Employment Relations Act 1999.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the dismissal was unfair. It applied the correct question under section 98(4) of the Employment Rights Act 1996: whether the employer acted reasonably in the circumstances, not what the Tribunal itself would have done.

2. The Tribunal was entitled to find that a reasonable employer would have granted the short further postponement. The claimant had not behaved obstructively, the proceedings had not been prolonged, and the purpose of the adjournment was to secure attendance with her chosen union representative. The employer had acted with undue haste in proceeding in her absence.

3. Section 10 of the Employment Relations Act 1999 creates a distinct right to accompaniment and a limited statutory postponement entitlement. The employer's compliance with section 10(5), because the proposed date was outside five working days, did not answer the separate unfair-dismissal question. Section 10 neither fettered the Tribunal's discretion nor narrowed the meaning of section 98(4). A breach of accompaniment rights may commonly support a finding of unfair dismissal, but the converse does not follow.

4. The failure to adjourn was a fundamental procedural defect and was not cured by the internal appeal. It also followed from the finding that the refusal was unreasonable that the claimant was not at fault for declining to attend the hearing without her representative.

5. The Tribunal correctly treated contributory fault as its own factual assessment, distinct from the employer's original dismissal decision. Its 15% deduction for the claimant's misconduct, and its separate 15% Polkey assessment of the chance of a fair dismissal, were open to it. The Tribunal was also entitled to regard the emails, in their context and after long unblemished service, as misconduct warranting discipline but not necessarily summary dismissal.

• Employment Appeal Tribunal: dismissed the employer's appeal and upheld the finding of unfair dismissal: [2018] UKEAT 0236_17_2003.
• Employment Tribunal (Bristol): upheld the unfair-dismissal complaint, reduced the awards by 15% for contributory conduct and made a further 15% Polkey reduction to the compensatory award.