Many employers already allow an employee the right to have a friend or colleague accompany them as a witness at a disciplinary or grievance hearing. Indeed, the Acas Code on Disciplinary Practice and Procedure recommends that all disciplinary procedures should allow staff to be accompanied by a union representative or fellow employee of their choice. A dismissal resulting from such a hearing where the right was not offered may be procedurally unfair.
From 4 September 2000, workers – which includes employees, homeworkers and agency workers – will have a new statutory right to be accompanied at a disciplinary or grievance hearing. The right states that only a co-worker, a union official or an official whom the union has certified as having received training or experience in accompanying a worker may attend. A union official may be the companion even where the employer does not recognise the union.
It is therefore essential that disciplinary and grievance procedures are reviewed to ensure that the statutory right is available to the worker. The procedures should allow workers to be accompanied not only at the hearing but also any subsequent meeting where any resulting decision or action is to be communicated to the worker.
A worker whose employer does not give them the right can complain to an employment tribunal, which can order the employer to pay up to two weeks’ pay in compensation. Any worker dismissed for seeking to rely on the right, or for being the companion, will have been automatically unfairly dismissed.
Who else may accompany the worker?
Employers will often be asked by the worker whether the worker’s friend, family member or, in some cases, solicitor may accompany the worker. Employers should be wary of allowing this, as it reduces the “internal” nature of the hearing, and should instead recommend the companions set out in the new legislation.
The companion’s role
At the start of the hearing, the companion’s role should be clearly explained to both worker and companion. The employer should state that the companion may address the hearing and confer with the worker. It should also be made clear, however, that the employer expects to hear an explanation from the worker personally, and that the companion may not answer questions on the worker’s behalf. This should prevent the companion trying to defend the worker or otherwise trying to take control of the hearing.
The companion may want to take notes. This should be permitted. But it is recommended that the employer’s own representative also takes minutes of the hearing. These should be typed up soon after the hearing and a copy given to the worker, who should be asked to sign them to verify that they are a fair and accurate record.
Timing of the hearing
What if the employer proposes a time for the hearing and the worker’s companion will not be available at this time? Providing that the worker proposes a reasonable alternative time for the hearing within five working days after the day proposed, then the employer must postpone the hearing to this new time. If the companion is a co-worker, they must be allowed time off during working hours to accompany the employee and must not be penalised for doing so.
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