Employees have certain rights during disciplinary and grievance processes. One of these rights is that the employee may bring someone along to the disciplinary or grievance meeting to accompany them. Often the identity of the companion and the companion’s role in the process are causes of confusion for employers in dealing with these matters.
It is important at the outset to distinguish between investigatory and disciplinary meetings. A meeting to investigate an incident is simply a fact-finding exercise prior to formally putting allegations to the employee in the context of a disciplinary hearing. There is no right for employees to be accompanied at investigatory meetings unless an employer’s internal policies provide for accompaniment at this stage.
Recent case law has established that where a person’s professional career is at risk, for instance in the case of serious misconduct by a health professional or teacher, it is appropriate for the employee to be afforded the right to legal representation in internal disciplinary hearings. However, in the vast majority of cases, the right to be accompanied at disciplinary and grievance meetings is limited to accompaniment by a work colleague or trade union representative. Employers should realise that the right to accompaniment by a trade union representative applies irrespective of whether or not the employer recognises and negotiates with a trade union regarding its employee relations issues.
A request for accompaniment may be turned down if the request is unreasonable. For instance, it may be unreasonable for an employee to request to be accompanied by a work colleague who is a key witness to some of the allegations in the case as this may prejudice the hearing. It is important for employers to ensure that employees advise them in advance of the identity of the person that the employee would like to bring to the meeting as their companion.
Employers are at liberty to extend the right of accompaniment beyond that granted by law. For instance, sometimes employees will request to be accompanied by a friend or family member from outside the organisation. Employers should consider these requests and act reasonably on a case by case basis in deciding upon whether to allow accompaniment by a friend or family member.
Having considered the issue of who may accompany an employee at a disciplinary or grievance hearing, it is important to understand the role that the companion can play in the meeting. Employers can sometimes mistakenly believe that the companion is there simply to provide moral support and act as a witness for the employee but can take no active part in the hearing. The reality is that the companion has the right to address the meeting, make representations on behalf of the employee, challenge evidence and sum up the employee’s case. The companion cannot however answer questions on behalf of the employee. When an employer asks a question to the employee who is the subject of the hearing and the question clearly requires to be answered by that person, the employer should insist that the companion does not answer the question on behalf of the person to whom the question is addressed.
Sometimes, particularly with a strong union representative, it can be difficult to stop the companion responding to questions asked directly of the employee. It is worth setting out clearly at the start of the meeting what the role of the companion is and then reminding the companion of this during the hearing if they fail to adhere to the terms set out relating to their participation in the hearing.
If an employer believes that the employee’s companion is being unnecessarily difficult or is obstructing the progress of the hearing, the companion should be reminded that the employee’s right of accompaniment only extends to reasonable requests for accompaniment. The employer should indicate that if the obstructive behaviour does not stop, the request for continuing accompaniment by that person will no longer be considered reasonable and the hearing will be adjourned, to be re-convened and that particular person will not be permitted to attend the re-convened meeting as the employee’s companion.
The disciplinary and grievance procedures are designed to assist employers and employees in fairly addressing difficulties that arise in the workplace. The right for the employee to be accompanied at hearings is an important part of the process and it is therefore important that employers understand both who can attend hearings as a companion and what the role of the companion at the hearing is. If an employer is in any doubt, specific advice should be sought prior to the hearing.
Collective Questions is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us.
