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Special hearing arrangements
Reps need to consider with the member whether to ask for any special arrangements for the hearing. Relevant factors could include, for example:
• illness;
• disability;
• new mothers, including breastfeeding;
• language difficulties for workers whose mother tongue is not English;
• inter-personal issues, for example, worries about coming into contact with people from whom s/he should be kept apart.
Examples of reasonable adjustments to meeting arrangements:
• a reasonable adjustment for a member on long-term sickness absence could include holding the hearing at home, with frequent breaks and allowing a family member to sit in as an extra companion;
• a reasonable adjustment for a worker suffering from severe migraines could be to agree to postpone a meeting at short notice;
• some medical conditions such as Chrohns disease or Colitus mean a need to consider extra breaks, an understanding that the employee may need to leave the meeting quickly to go to the toilet and ready access to toilet facilities;
• where a worker suffers from photosensitive epilepsy it would be a reasonable adjustment to make sure the room uses natural rather than fluorescent lighting;
• where a worker has learning difficulties, a reasonable adjustment could be to take extra steps to make sure s/he has understood the issues and the possible outcome of the hearing. The Code of Practice on the Equality Act 2010 (www.equalityhumanrights.com) gives as an example of a reasonable adjustment for a worker with learning difficulties, allowing the worker to take a friend (who does not work with her) to act as her representative and ensuring that the meeting is conducted in a way that does not disadvantage or patronise the worker (Equality Act Code page 89);
• a reasonable adjustment for a member who stammers could include flexibility in choice of companion and extra time;
• organising for a worker’s disability support worker to attend the meeting;
• considering the side effects of any medication;
• in all cases, the employer should be encouraged to arrange disability awareness training sessions for managers tasked with holding investigation and disciplinary meetings, to make sure they understand what adjustments are needed to the way they conduct the meeting to take into account the worker’s particular needs.
Where an employee is deaf, reasonable adjustments are likely to include providing an interpreter and taking steps throughout to ensure that the employee properly understands the nature and seriousness of the case and the detailed allegations, is given adequate time to prepare and a full opportunity to state his or her case:
Mr Taylor, a profoundly and prelingually deaf IT worker, was sacked by cleaning services outsourcers OCS Group for forwarding to himself three emails he found in a colleague’s mailbox when fixing an IT problem, in breach of the company’s policy on accessing the terminals of other staff members. At the investigatory meeting, he mistakenly thought his line manager was representing him, so he refused an offer to be accompanied. He was asked a series of questions in writing and in response he admitted forwarding the emails, saying it was “out of character”.
Immediately that afternoon, OCS held a disciplinary meeting. Mr Taylor struggled to lipread the manager holding the disciplinary and no interpreter was provided. At the end of the meeting, which lasted 15-30 minutes, OCS decided Mr Taylor was guilty of gross misconduct and he was sacked. It was clear from the notes of the meeting that he had not understood what was happening in the meeting.
He appealed and at the appeal hearing, he was represented by an interpreter. His sister attended as his companion and she took over the interpreting when the interpreter had to leave part way through. The appeal meeting was conducted by a senior manager and lasted four hours. Mr Taylor was asked to explain each of the admissions he made at the investigation stage and to indicate what he would have preferred to have said.
The employment tribunal found that the dismissal hearing was so hopelessly flawed that the appeal hearing could not cure it, and the dismissal was unfair. However, the case reached the Court of Appeal who overturned the tribunal’s decision. The Court of Appeal said that whether or not an appeal can “cure” a defective first hearing will depend on all the facts and on whether the overall process is fair. In this case, the Court of Appeal decided that given the quality of the appeal hearing, the overall process was fair (See Chapter 10: Appeals).
Taylor v OCS Group Limited [2006] EWCA Civ 702
Perhaps the crucial lesson for reps from the Taylor case is that it underscores the importance of early involvement. A workplace based rep interceding on behalf of a worker in this kind of scenario in a unionised setting might well have been able to avoid the dismissal and persuade an employer to agree a less draconian sanction such as a Final Warning.