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Employee’s Right To Be Accompanied At Disciplinary Meetings: Q&A
Section 10 of the Employment Relations Act 1999 gives employees and workers the right to be accompanied at a disciplinary or grievance hearing.
This blog answers the common questions around the scope of that right and considers case law and best practice.
1) What kind of meetings do I have to allow the employee to be accompanied at?
The legal right applies only to disciplinary and grievance hearings. This means that investigation meetings and meetings under other procedures, such as those concerning redundancy or not covered by the right.
Some employer’s policies will be more generous though and allow employees to be accompanied at other formal meetings.
Employers should consider requests to be accompanied at other meetings, particularly where the employee concerned is, or may be, disabled, in which case allowing a companion might be a reasonable adjustment.
2) Who can the companion be?
Legally, the employee is entitled to be accompanied by either a co-worker, someone employed by a Trade Union or another authorised Trade Union official.
Case law has clarified that the right to be legally represented at a hearing only arises in very limited circumstances where the process could lead to the employee no longer being able to continue in their profession without any further regulatory hearings in the matter.
Again, employers should consider requests to be accompanied by a family member or friend where appropriate, particularly where the employee concerned is or may be disabled, in which case, allowing a different companion might be a reasonable adjustment.
A recent case has confirmed that the employer is not entitled to refuse the chosen companion if they are not considered a reasonable choice. Some employer’s policies will state that employees cannot chose a companion where there is or could be a conflict of interest, or that senior managers cannot act as companions. A refusal to allow an employee to have the companion of their choice (within the restricted categories above) will be in breach of the right.
This is contrary to the guidance in the ACAS code of practice on disciplinary and grievance matters, which states that the employer is entitled to consider reasonableness in terms of the impact of the companion on the hearing and their geographic location. Potentially, if a colleague or trade union rep is willing, the employer will have to allow for them to travel to attend a hearing many miles away.
3) What can the companion do during the course of the meeting?
The companion is permitted to address the hearing (but not to answer questions on the employee or worker’s behalf) and to confer with the employee during the hearing.
Some employer’s policies will go further than this and allow the companion to represent the employee at the meeting and put forward their version of events.
4) How far do I have to go to reschedule the meeting around the companion’s availability?
If the chosen companion is not available for the meeting, the employee is entitled to propose an alternative time for the meeting, as long as this is reasonable and within five days of the original proposal.
The employer must permit a colleague to take time off to attend a meeting as a companion.
5) Do I have to advertise the right to be accompanied?
The Employment Relations Act refers to allowing the employee to be accompanied, if the employee so requests. This means that legally, you are not obliged to tell employees about this right. However, it is accepted best practice to do so (usually in meeting invite letters) and this will assist in defending any unfair dismissal claim (which would consider procedural fairness).
6) What happens if I get this wrong?
Employees can bring claims for breach of these rights on their own as well as arguing that they contributed to their dismissal being unfair.
Employees will be entitled to compensation based on the losses or detriment suffered by the worker as a result of not being allowed to be accompanied, awards are not intended to be a penalty on employers.
How Can Nelsons Help?
Laura Kearsley is an Employment Law specialist.
For more employment law advice or to comment on this article, please contact us to speak to a member of our employment law team.