Giving a worker the right to be accompanied in a meeting can make it far
more formal than employers would like, especially if all they need is an
‘informal chat’. But since September 2000, staff have had the right to be
accompanied in disciplinary and grievance hearings. Since April 2003, they have
had the right to be accompanied in meetings to discuss flexible working
requests. And from October 2004, there will be a new regime for
Q What sort of ‘disciplinary hearing’ triggers the right for
an employee to be accompanied in a meeting?
A Some form of disciplinary sanction must be a possible outcome of
the meeting. The EAT set out guidelines in two cases involving London
Underground and Ms Ferenc-Batchelor and Mr Harding respectively.
An employee doesn’t have the right to be accompanied to a meeting that will
result in training, counselling, advice, fact-finding or a genuinely informal
oral warning, which is not part of any disciplinary proceeding.
But they must be accompanied if an oral warning will be recorded on the
worker’s file, whether it is formal or informal. If the company’s disciplinary
procedure starts with oral warnings and accelerates to a written warning, the
employee will then have the right to be accompanied in the meeting at which the
oral warning is given.
Q Will the new regime for disciplinary and grievance hearings apply to
the same meetings as the current right to accompaniment?
A No. The current right applies to meetings that could result in
disciplinary sanction. But the Government intends that the new right – to be
activated in 2004 – will only apply to disciplinary penalties, such as
dismissals, and not to meetings that could result in disciplinary warnings.
It will also encompass meetings that could result in a dismissal for
incapacity, incapability and any other reason, such as redundancy or the expiry
of a fixed-term contract.
Current disciplinary and grievance procedures apply to employees. The new
ones will apply to employees as well, unless the Government decides to widen
the scope. The right to request flexible working is also restricted to
employees.
Q Who can staff have to accompany them to meetings?
A The statutory rights are inconsistent. An employee can be
accompanied to discuss a flexible working request by a worker of the employer,
but has no right to be accompanied by a trade union representative.
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From 2004, staff will have the same right to be accompanied as they do
currently for disciplinary and grievance procedures – by another worker of the employer,
or an employee, or a certified official of a trade union.
By Jill Kelly, partner, Clarks
