One question which I often get asked when an employee is under disciplinary proceedings is, can the employee bring whomever they like to a meeting? Employers tend to find this particularly concerning when the employee wants to bring a family member for ‘moral support’.
What rights do employees have to be accompanied during disciplinary proceedings?
*Workers have a statutory right to be accompanied where the disciplinary meeting could result in:
- A formal warning being issued; or
- The taking of some other disciplinary action; or
- The confirmation of a warning or some other disciplinary action (appeal hearings).
This statutory right extends for the companion to be a fellow worker, a trade union representative or an official employed by a trade union. The right does not extend to a family member of the employee. The right also does not extend to investigatory meetings although some employers’ internal policies may allow this. It is important to double check your company’s disciplinary policy, if there is one.
What if the employee wants to bring a companion who is a trade union representative that you have had difficulties with in the past?
In this case, the choice of companion is the decision of the employee. You cannot pick the companion on their behalf. If you have concerns regarding the companion you could discuss this with the employee and having explained the reasoning, suggest the employee choose an alternative, but the reasonableness of that decision will potentially be determined by the tribunal. As it was in the recent case, Gnahoua v Abellio London Ltd 2017, where a claimant’s choice of companion for his disciplinary appeal was dismissed by his employer. What this case shows us is that relationship difficulties in themselves may not be a sufficient reason for dismissing a companion. If the chosen union representative’s conduct is unreasonable and inappropriate then that is a matter that should be addressed with the union itself.
In practice, the employer would need to rely on strong reasons for excluding the chosen companion such as in the Gnahoua case of threatening behaviour and dishonesty or for example, where there is a potential conflict of interest. In any event, the employer needs to be clear with the worker that another companion can attend whether that be a work colleague or another representative from the union.
*This definitation is taken from the ACAS code of practice.