Right to be accompanied
It has recently been reported that the Education Secretary, Nadhim Zahawi, is considering plans to amend the Employment Relations Act 1999 to give teachers the statutory right to be accompanied to grievance and disciplinary hearings by an external lawyer or representative of a body other than a trade union.
It appears that the plans referred to only apply to teachers, although it is unclear if they would be extended to other education staff or other sectors. If this is implemented widely, it would be an unwelcome development for many employers as they may perceive that it would damage employee relations and make disciplinary and grievance situations more complex.
Currently, employees have a statutory right to be accompanied by a fellow worker or trade union official where they are required or invited by their employer to attend any formal disciplinary or grievance hearing. Fellow workers or trade union officials are not obliged to agree to accompany a worker, and they should not be pressurised into doing so.
Informal discussions, counselling sessions and investigatory meetings do not attract the right to be accompanied, unless the meeting could result in a formal warning or other disciplinary action.
If a worker’s chosen companion will not be available at the time proposed for the hearing by the employer, the employer must postpone the hearing to a time proposed by the worker, provided that the alternative time is both reasonable and not more than five working days after the date originally proposed.
At the hearing itself, the worker’s companion must (if the worker wishes) be allowed to:
- address the hearing
- put and/or sum up the worker’s case
- respond on behalf of the worker to any views expressed at the hearing
- confer with the worker during the hearing.
The companion may not answer questions in place of the worker (the employer has the right to expect the worker, and not their companion, to answer any questions put to them during the hearing).
Some employers may allow people other than fellow workers and trade union officials to accompany an employee (for example, a partner, spouse or legal representative). Whether an employee has a right to bring someone other than a colleague or trade union representative along to a disciplinary hearing will usually depend on the terms of their contract of employment.