Q Do workers have the right to be accompanied at a disciplinary or grievance hearing?
A Yes. The Employment Relations Act 1999, section 10, provides for the right to be accompanied at a disciplinary or grievance hearing. It should be noted that this right extends not just to employees, but also to workers, including agency workers and homeworkers.
Q For these purposes, how is a disciplinary or grievance hearing defined?
A The Employment Relations Act 1999, section 13, defines a disciplinary hearing as one that could result in the administration of a formal warning, the taking of some other disciplinary action, such as suspension without pay, demotion or dismissal, or the confirmation of a warning or some other disciplinary action. Meanwhile, a grievance hearing is one that concerns a complaint in relation to an employer’s statutory or common law duty to a worker. The right to be accompanied will apply to any meetings held under the statutory dispute resolution procedures.
Q Who can be chosen as a companion?
A The companion must be chosen by the worker, and can be a full-time trade union official, or a lay trade union official who has been reasonably certified by the union in writing as having experience of, or having received training in, acting as a companion at such hearings.
There is no necessity for the trade union to be recognised in the workplace. However, where a union is recognised, it is good practice for workers to request to be accompanied by one of its officials.
The companion can also be another of the employer’s workers. However, there is no obligation on a worker or union official to accept a request to act as a companion, so no pressure should be applied on them to do so.
Employers should also bear in mind that their workers may have additional contractual rights to be accompanied by other categories of companion, such as a partner, spouse or legal representative.
Q Does a fellow worker have the right to time off to act as a companion?
A Yes – an employer must permit a worker to take a reasonable amount of paid time off during working hours to act as a companion to another of its workers. While this should obviously cover time off for the hearing itself, the Acas Code of Practice on Disciplinary and Grievance Procedures advises that it is good practice to permit time off for the companion to familiarise themselves with the case, and confer with the worker they are accompanying both before and after the hearing.
The right to a reasonable amount of paid time off extends to lay trade union officials, so long as the worker they are accompanying is employed by the same employer. Where a lay official agrees to act as a companion for another employer’s worker, time off is a matter for agreement between the parties concerned.
Q What is the companion’s role at the hearing?
A The companion must be permitted to address the hearing to put forward the worker’s case, sum it up and respond on the worker’s behalf to any view expressed at the hearing. They must also be permitted to confer with the worker during the hearing. However, the companion has no right to answer questions on behalf of the worker, to address the hearing if the worker does not wish them to do so, or to prevent the employer explaining its case.
Q What happens if the companion is not available at the time chosen for the hearing?
A If the companion is not available at the proposed hearing time, and the worker suggests another time that is reasonable and falls within five working days of the original time, the hearing must be postponed until the new time proposed by the worker.
Q What redress is available if the employer fails to permit the worker to be accompanied?
A If the employer fails to comply with a reasonable request by the worker to be accompanied, or fails to postpone the meeting to a reasonable date if the companion is unable to attend the scheduled meeting, the worker can complain to an employment tribunal. Where the complaint is well founded, the tribunal will order the employer to pay up to two weeks’ pay as compensation.