The Claimant was summarily dismissed for gross misconduct and an ET found that although the Respondent had shown a potentially fair reason for dismissal, the decision to dismiss was unfair procedurally and fatally flawed by the refusal of the Respondent to postpone the already once postponed disciplinary hearing to enable the Claimant to be represented by her trade union official. The Respondent appealed on 2 grounds: 1) that the ET had fallen into a substitution mindset and 2) the ET had failed to have regard to s10(5) of the Employment Relations Act and the ACAS Code.

The EAT dismissed the appeal. In particular, they rejected the s10(5) argument, which refers to a failure by the Respondent to allow the Claimant to be accompanied to a disciplinary hearing - this was an unfair dismissal complaint brought under s98 ERA 1006 and no breach of the right to accompaniment duty was being alleged. Whilst a breach of the s10 Employment Relations Act 1999 accompaniment right at a disciplinary meeting which results in the dismissal of an employee could well, and perhaps almost always will, result in a finding of unfair dismissal for an eligible employee, the corollary cannot be right.