Who can be a companion to an employee in a disciplinary hearing?

Recently we were asked by a day nursery if it was possible to limit what trade unions they would recognise and allow into the setting when an employee requested one to be a companion in a formal hearing.

Upon asking why they wanted this, we were told that a rep’ from a certain TU had attended in the past,  been disruptive on one occasion and had been on his phone in a virtual hearing on further occasion.

We understood why they did not want him back!

While we sympathised, the day nursery had a fundamental misunderstanding of the legislation.

The law

The right to a companion arises under the Employee Relations Act 1999. A worker has the right to either a fellow worker or a TU representative to accompany them.

This means it is the employee who chooses what TU rep they bring, and the employer cannot deny the rep’ access because they do not recognise a TU or dislike the rep’.

The employee does not have to be a member of the TU the rep’ is from even. I remember a case where a family friend who was a rep for the FBU (Fire Brigade’s Union) attended a grievance hearing with the employee who worked in retail on his day off just to help them out.

We advised in this case that the employer’s approach ought to be to the TU itself and to inform them of the actions of their rep’.

Unions do not take kindly to their reps being unprofessional or acting in a way that would be seen as damaging to the union.

This led on to a discussion about “what if the employee wanted to bring mum, dad or a sibling? Can anyone come in?”

While the law gives the employee two options, the right to be accompanied by a work colleague or trade union rep, it is open to an employer to allow others to accompany the employee and if the request is made, it is worth considering why or why not?

The circumstances could mean that family or a friend may be appropriate. This might include when someone has a disability, is in poor health or where English isn’t their first language.

Sometimes, the employee may not want staff to know about the matter or they may be raising something about their colleagues.

Will allowing a companion from outside the normal parameters help you get the process done?

Also, if mum or dad attends and goes beyond the boundaries of what a companion can do, then the meeting will be stopped, they will be asked to leave and not allowed back. To quote a cliché, “you not only have been fair but you will have been seen to be fair.”

The reverse is also true, families being aware of the allegations can result in a different reaction. We can recall situations where parents have been ‘all guns blazing’ until they heard first hand the allegations and not the filtered version of events the young person had relayed when they got home.

If you need any assistance managing the rules on accompaniment, please do not hesitate to give us a call on 01527 909436.