In Talon Engineering Ltd v Smith, Mrs Smith, who had 21 years' service and an unblemished disciplinary record, was invited to a disciplinary hearing.  She had sent emails to a contact in a company with which her employer traded referring to an unnamed colleague in derogatory terms. She had also attempted to delete some emails sent to the same contact which Talon managed to retrieve.  The content of the various emails were said to have the potential to bring the company into disrepute and to breach their bullying and harassment policy.

Following an investigation, Mrs Smith, who had been suspended for around a month by this time, was invited to a disciplinary hearing on 5 September.  This was postponed due to her ill health and a subsequent period of annual leave.  On 19 September Mrs Smith was invited to a rescheduled hearing on 29 September.  Unfortunately, Mrs Smith's union rep was not available on that date and his earliest availability was just under two weeks later in mid October.

Talon refused to postpone the disciplinary hearing.  They emailed the TU rep explaining that a further delay would add strain to both Mrs Smith and the employees covering her work.  They also asserted that they were entitled to reject the adjournment request because the union official could not attend within 5 days of the date set.  Mrs Smith then indicated that she was not prepared to attend in the absence of her rep, the disciplinary hearing took place in her absence and she was summarily dismissed.  An appeal hearing took place, but it was not a full rehearing and the dismissal was upheld.

An employment tribunal found that the failure to postpone the disciplinary hearing made the dismissal unfair.  This was despite the fact that the failure to postpone did not breach the claimant's right to be accompanied because the alternative date proposed by the TU rep was more than 5 days from the date that had been set for the hearing. 

When an appeal by Talon came before the EAT it was dismissed. While a breach of the statutory right to be accompanied under section 10 of the Employment Relations Act would almost always result in a subsequent dismissal being found to be unfair, the corollary of that is not true.  The fact that the TU rep could not appear within 5 days of the originally set date did not give the employer free rein to proceed with the disciplinary hearing in the absence of the employee.  While these matters will always turn on the facts of each individual case, on this occasion, the Employment Tribunal was entitled to conclude that it was unreasonable for Talon not to postpone the hearing for a further short period.