Disciplinaries and language barriers: legal dilemma

Q We are currently involved in a disciplinary process with one of our employees. He is from Poland, speaks only a little English and is unlikely to really understand what is going on at the disciplinary hearing. We are concerned that we follow a fair process. Can the employee insist he is accompanied by a member of his family?

A Employers faced with these circumstances should be prepared to be flexible to ensure the process is as fair as possible.

An employee cannot insist they are accompanied to a disciplinary hearing by a member of their family. Where an employee is required to attend a disciplinary hearing and reasonably requests to be accompanied, the employer must permit the employee to be accompanied by a ‘single companion’.

There are specific criteria that restrict the pool from which a companion can be chosen. An employee’s companion can only be a trade union official or one of the employee’s colleagues.

However, the employee could argue he has made a reasonable request given the language barriers, which may not be surmountable by using a union official or colleague. If the employer refuses the request, their actions could be viewed as unreasonable given the employee would be placed at an obvious disadvantage at the hearing without a companion. They may not be able to answer the questions properly and they will not fully understand what is going on.

While an employee can’t insist that a member of their family accompanies them, the employer should seriously consider the request. The employer could allow, on this occasion, the employee to be accompanied by a member of their family or, alternatively, it could pay for an interpreter to attend the hearing. Notes of the meeting should be taken and the time allotted for the disciplinary hearing should also be increased.

If the employee was subsequently dismissed, a tribunal might decide that an employer’s failure to allow them to be accompanied was contrary to the general requirements of the Statutory Dismissal and Disciplinary Procedures. As such, the dismissal could be automatically unfair.

Gareth Roberts, associate, DWF

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