- October 4, 2016
- Posted by: admin
- Category: Autum Winter 2016 Newsletters
The Law in More Detail
This Newsletter looks at the issue of whether a worker or employee can only be accompanied by a trade union official at a disciplinary or grievance hearing if the employer recognises the union.
The right for a worker to be accompanied applies even if you do not recognise the union and even if the worker is not a union member (albeit this could of course mean that it is difficult for such a worker to obtain that assistance). This right is not limited to employees and may therefore include casual, temporary and agency workers. This right stems from the Employment Relations Act 1999.
The law provides that a worker has the right to reasonably request that they be accompanied by a colleague of their choice or trade union official at a disciplinary or grievance hearing. A trade union official is someone employed by the trade union as an official (full time officer often) or another person employed by the trade union with appropriate experience.
The only proviso is that the worker’s request to be accompanied must be reasonable. A request will be reasonable if it relates to a colleague or trade union official. The Employer must not choose the representative or put any pressure on the worker to be represented by a particular person even if you think that the person they have chosen is likely to be disruptive or otherwise prejudice the hearing. However the ACAS guidance on this suggests that it would not be reasonable to request a companion from a geographically remote location.
A companion has the right to address the hearing, and to confer with the worker during the hearing, but not to answer questions on behalf of the worker (companion not representative).
Difficulties can arise if the companion cannot attend the hearing. If this happens the worker can request for the meeting to be postponed and rescheduled. If you receive an application to postpone the hearing for this reason, unless there are very good reasons for not doing so, you should agree to it. That said, you are entitled to deal with the issues without unnecessary delay and you do not have to put the hearing back weeks to enable the worker to be accompanied by their companion of choice.
The law provides that the hearing can be postponed by up to 5 working days, but there is nothing to stop you postponing for a slightly longer time and, it may be unreasonable to refuse to do so in circumstances where, for example, the companion can attend 6 or 7 days after the original date.
However, generally, workers are only able to postpone hearings due to the unavailability of their companion on one occasion.
The maximum compensation for breach of the right to be accompanied is limited to two weeks’ pay currently capped at £958, but recent case law suggests that where the worker has not suffered any disadvantage (perhaps because s/he was able to be accompanied by someone else) awards may be minimal.
Workers will sometimes ask to be accompanied by a lawyer or family friend. Unless your policy permits this, (or you have regularly agreed in the past – custom and practice) you can usually refuse the request.
However, if the worker is disabled, you may have to consider making a reasonable adjustment to accommodate the request or risk a claim for disability discrimination for the failure to make reasonable adjustments. For example, an employee who has extreme anxiety might feel less anxious if s/he was accompanied by a friend or family member. You will need to consider such requests on a case by case basis.
Another example would be to allow an interpreter to attend where the employee does not have a good command of English.