All workers who are required or invited to attend a disciplinary or grievance meeting have the right to be accompanied. But what does this right entail for the employee and what are the employer’s obligations?
Please note, the Q&As below are based on the statutory guidance but you should also carefully check your own disciplinary and grievance procedures, which may be more generous than the worker’s statutory entitlement.
All ‘workers’ have the right to be accompanied by a companion chosen by them (rather than chosen by the employer), irrespective of their length of service. The definition of worker includes employees, consultants and agency workers.
- Who may act as a companion?
A worker may choose to be accompanied by a member of his/her union or a co-worker. The worker’s request to be accompanied must be reasonable. Case law suggests that it would not be reasonable for a worker to request a companion who might prejudice the outcome of the meeting or from a remote location if a suitable companion could be found at the worker’s place of work.
a) Companion from a Trade Union
The companion must be an employed official of the union or an official whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings. Employers may ask the union for evidence of such qualifications.
It is also worth noting that some unions, irrespective of whether the official falls within the above definition, will not allow the official to act as a companion if, for example, the union feels the official does not know enough about the employer’s industry.
b) Non-trade union companion
Alternatively, the worker may ask a colleague to act as his/her companion. The employer is obliged to permit the worker’s chosen companion to take time off during working hours to accompany the worker to the hearing.
Workers often request to be accompanied by family or friends but, unless the employer’s disciplinary or grievance procedures provide otherwise, the employer is not obliged to grant this request. However, although it is beyond the worker’s legal entitlement, some employers permit a companion to be accompanied by a friend or family member. Making such an exception is often pragmatic on the part of the employer as it may expedite matter and, especially in a small workplace, may avoid awkward situations where colleagues may be involved in the dispute or complaint. The disadvantage of making an exception to the rule is that it might create an unhelpful precedent and, as the companion will be more personally connected to the worker, the meeting may become more emotional and tense.
If the employee is disabled the employer is obliged to consider whether any reasonable adjustments need to be made to eliminate any disadvantage to the employee. Such adjustments might include allowing the worker to be accompanied by a companion from outside the workplace or allowing the worker to be accompanied by more than one companion or a companion and an interpreter, for example.
- Can the worker be accompanied by their legal representatives?
The law in this area in currently being tested in the courts but the general position, at present, is that the worker may only be accompanied by a legal representative if the potential dismissal would have the effect of preventing the worker from continuing work in their profession, for example, a doctor dismissed for negligence could lose his reputation and practice.
- Can employers reject the chosen companion?
Not unless they have valid, objective reasons for doing so, for example, because this might prejudice the outcome or affect a process for another employee, for example, it might be fair to exclude a co-accused from accompanying their colleague to the hearing. Simply objecting to the companion on the basis that they are ‘difficult’ is unlikely to cut it.
If the companion cannot attend the disciplinary or grievance meeting on the date set by the employer the worker should suggest an alternative date when the companion is free. The alternative time and date must be reasonable and not more than 5 working days after the original date of the meeting.
- What is the companion’s role?
The companion’s role is to support the worker. The companion may address the hearing (but not to answer questions on behalf of the worker) and may confer with the worker during the hearing, which may include leaving the meeting to speak privately, if necessary. The companion should be introduced at the beginning of the meeting, reminded of his/her role and of the need to keep all discussions and papers surrounding the meeting confidential.
There are penalties for employers who do not allow workers to exercise their right to be accompanied. If the worker is dismissed for exercising these rights the dismissal will be automatically unfair.
In conclusion, check your own disciplinary and grievance policies; ensure that you follow the statutory minimum guidance outlined above and if you choose to make exceptions to the rule, ensure that you act fairly and consistently.
Laura Evans is an Employment lawyer at Fox Williams LLP and can be contacted for more information about this article at firstname.lastname@example.org.