Section 10 of the Employment Relations Act 1999 gave a worker attending a disciplinary or grievance hearing the right, on reasonable verbal or written request, to be accompanied to this hearing by a fellow worker or trade union official.
A disciplinary hearing takes place when an employer wishes to formally discuss alleged misconduct with an employee and will normally occur as part of an organisation’s formal disciplinary procedure. A grievance hearing is called by an employer when they receive a complaint from an employee about something that has happened in the workplace that the employee is not happy with, and would like some kind of formal resolution to the problem.
An employee called to a disciplinary or grievance hearing should receive a written invitation to the hearing, and this invitation should remind the employee that they have the statutory right to be accompanied.
The employee may then choose who they wish to accompany them to the hearing. If a trade union official is the chosen companion, the worker has a right to choose an official from any trade union, regardless of whether or not the union is recognised by the employer, or whether they are an existing member. Whilst the worker should, in all cases, tell the employer who their chosen companion is, in the particular case that the companion is a trade union official, it is helpful for the employer and companion to make contact at an early stage to ensure that a mutually convenient time and location for the hearing can be set.
The worker is entitled to propose an alternative date and time (provided that it is reasonable and not more than five working days later than the original hearing date) if it becomes apparent that their companion will not be able to attend at the agreed time and location. Employers should also be aware that they are required to make “reasonable adjustments” in the case of a disabled worker or a disabled companion.
Recent case law has suggested that if the result of a disciplinary procedure could affect an employee’s ability to continue to practice his profession, then he is entitled to legal representation at a disciplinary hearing and need not rely only on a fellow worker or a trade union official.
The worker’s companion may:
• put the worker’s case;
• sum up that case; and
• respond on the worker’s behalf to any view expressed at the hearing.
However, the companion is specifically prohibited from:
• addressing the hearing if the worker indicates a wish against this; and
• preventing the employer or any other person at the hearing from making a contribution to it
Refusing to allow a worker to be accompanied could lead to a finding of automatically unfair dismissal if the worker is dismissed as a result of the disciplinary hearing and makes an unfair dismissal claim to an employment tribunal.
If you would like to know more about disciplinary and grievance hearings, call the Advice Service on 0844 892 2772 and one of our trained specialists will be happy to help.