Most employers will know that a worker will have the right to be accompanied when they are invited to attend a formal disciplinary or grievance hearing but are less clear on a range of matters which commonly arise in respect of this.
This guide aims to clarify your obligations and to protect your business from an unwanted dispute arising over representation during an internal hearing.
1. Does the right to be accompanied extend to investigatory meetings? No, provided that you do not decide to take disciplinary action during this meeting. If the worker admits misconduct during an investigatory meeting, you should adjourn the meeting and reconvene it at a later date when the worker can exercise their right to be accompanied.
2. Who can qualify as a companion? A trade union official employed by the union, a trade union official who has the necessary experience or training to act as a companion or another of the employer’s workers.
3. Are there any circumstances when a request may not be reasonable? Yes, where the chosen companion’s presence would prejudice the hearing or involve a conflict of interest and where there are suitable colleagues available at the same site, but the worker requests the attendance of a companion from a remote geographical location.
4. Is the chosen companion obliged to agree to carry out the role? No, you should not pressurise a chosen companion to refuse or accept a worker’s request.
5. What happens if the companion is not available at the time/date set by you for the hearing? The worker may propose an alternative time within five working days of the original hearing and you should postpone the meeting until this time unless the proposed time is unsuitable due to prior commitments. In this scenario, you should liaise with the worker to agree an alternative date that is suitable for all parties.
6. What happens if the companion is not available for a rescheduled meeting? There is no legal obligation to postpone the meeting further, so it may be appropriate to suggest that the worker choose a different companion or the meeting is held without the chosen companion.
7. What is the role of the companion? The companion is permitted to put the worker’s case, sum up the worker’s case and respond on the worker’s behalf to any views expressed by the employer at the hearing. They must also be permitted to confer with the worker during the hearing.
8. What can I do if a companion behaves disruptively during a hearing? You can request that they stop acting unreasonably or adjourn the hearing.
9. Does a worker have the right to request that a friend or relative attend as a companion? Only if their employment contract or incorporated disciplinary rules allow for friends/relative to attend.
10. Does a worker have the right to request for their solicitor to attend? Only if the outcome of the disciplinary proceedings could determine whether or not it is possible for the worker to continue in their chosen profession. If it could, they may be entitled to legal representation at the disciplinary hearing.
The consequences of an employer’s breach in the right to be accompanied may result in a claim being submitted to an employment tribunal, which could result in an increase of up to 25% in an award. Understanding your legal obligations could save you significant time, aggravation and expense.
By Bruce Ramshaw
Principal Consultant
