What is the right?
Section 10 of the Employment Relations Act 1999 gives a worker a right to be accompanied where they:
- are required or invited by the employer to attend a formal disciplinary, appeal or grievance hearing, and
- reasonably request to be accompanied at that hearing.
Who can be a companion?
A worker is entitled to request to be accompanied by:
- a person employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992;
- an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings, or
- another of the employer’s workers
What is the role of a companion?
During the hearing, a worker’s companion should be permitted to:
- put forward the worker’s case;
- sum up a worker’s case;
- respond on the worker’s behalf to any view expressed at the hearing; and,
- confer with the worker during the hearing.
An employer does not have to permit the companion to:
- answer questions on behalf of the worker;
- address the hearing if the worker does not wish for them to do so; or,
- do any of the permitted actions in a way that would prevent the employer from explaining their case or would prevent any other individual at the hearing from putting forward their contribution.
Do I have to allow time for a worker to get a representative?
Yes. If a worker has a right to be accompanied, and their chosen companion is not available at the time of the proposed hearing, the worker can make a request for the hearing to be postponed. The alternative arrangements should be reasonable and be before the end of the period of five working days (beginning with the first working day after the day proposed by the employer). An employer should allow worker time off from their duties during working time in order to accompany a colleague.
What are the ramifications for not allowing this right?
Workers can make a claim for breach of the right to be accompanied and compensation can be awarded of up to two weeks’ pay.
In addition, failure to allow a worker to be accompanied to a disciplinary, appeal or grievance meeting can also impact the fairness of a disciplinary sanction and/or other claims arising out of a grievance, appeal or disciplinary.