You have invited a member of staff to a disciplinary hearing. They have asked you to postpone the hearing so their union official can accompany them.

Can you say no? And if you do, will it affect the fairness of your decision?

The law

All employees are entitled 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 do not 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 are 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 you have breached their rights to be accompanied. But, 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 is reasonable depends on the circumstances. For example, in a recent case Talon Engineering Ltd v SmithMrs 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 did not breach Mrs Smith's statutory right to be accompanied, this did not 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.

Compensation

The maximum compensation for breach of the right to be accompanied is limited to two weeks' pay currently capped at £1016 (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.

Need further advice?

Contact Kirsty Ayre; kirsty.ayre@irwinmitchell.com or 0114 274 4911