Does the failure to allow an employee to be accompanied during a disciplinary hearing in itself render the dismissal substantively unfair, or if not substantively unfair, procedurally so?

A dismissal will be unfair under section 98 of the Employment Rights Act 1996 (ERA 1996) if it was not for one of the five potentially fair reasons (section 98(1) and (2), ERA 1996) and the employer failed to act reasonably in treating that reason as a sufficient reason for dismissal (section 98(4), ERA 1996). There are, therefore, two stages:

1. Was the dismissal for one of the five potentially fair reasons?
2. Was the dismissal fair or unfair, having regard to whether the employer acted reasonably in dismissing the employee for the reason given?

The substantive fairness of a dismissal relates to whether the employer's decision is within the range of reasonable responses. The procedural fairness of a dismissal relates to whether the dismissal has been carried out in a procedurally fair manner.

Case law has established that in looking at the question of reasonableness under section 98(4), the procedural fairness of the dismissal will be taken into account. In cases of misconduct or poor performance dismissals, this includes following the Acas Code of Practice on Disciplinary and Grievance Procedures. Tribunals must take the Acas Code into account when deciding whether an employer has acted reasonably.

The right to bring a companion to a disciplinary or grievance hearing is a statutory one, but is also mentioned in the Acas Code and forms part of the procedure that an employer should follow. A failure to allow an employee to be accompanied at a disciplinary hearing goes to the question of procedural fairness, did the employer act unreasonably in failing to follow a fair procedure when dismissing the employee?

However, when considering a potentially unfair dismissal under section 98 of ERA 1996, the tribunal is concerned with whether the reason for the dismissal was fair and whether the employer acted reasonably. Whilst procedural fairness has become part of the reasonableness test, procedural defects will not necessarily render the dismissal unfair (London Central Bus Company Ltd v Manning EAT 0103/13).

"It is important to bear in mind that S.98(4) ERA poses one unitary question: whether the dismissal was fair or unfair, having regard to the reason shown by the employer — USDAW v Burns EAT 0557/12. According to the EAT in that case, this means that the tribunal must not treat the reasonableness of the decision to dismiss and the reasonableness of the procedure as if they are two separate questions, each of which must be answered in the employer’s favour before the dismissal can be considered fair. It is not, however, an error of law for a tribunal to deal with the substantive and procedural elements of the decision to dismiss separately, provided that its approach leads to an overall determination as to the fairness or unfairness of the dismissal."

While a tribunal can consider substantive and procedural unfairness separately, it must nevertheless make an overall determination regarding the fairness (or otherwise) of the dismissal.