Right to be Accompanied
All workers have a statutory right to be accompanied at a grievance or disciplinary hearing by a fellow worker or trade union official.
For the purposes of this right a grievance hearing is one where the employer deals with a complaint about a legal duty they owe to a worker, for example, an issue relating to the worker’s contractual or statutory rights. A disciplinary hearing is defined as a meeting which could result in a formal warning being issued to a worker, the taking of some other action such as suspension without pay, demotion or dismissal or the confirmation of a warning issued or some other action such as an appeal hearing.
The right to be accompanied applies to any grievance or disciplinary meeting, including meetings held under the statutory disciplinary and grievance procedures introduced in Northern Ireland in April 2005. It does not apply to investigation meetings, informal discussions or counseling sessions unless they could result in formal warnings or other actions.
The worker can choose a single companion to be accompanied by and this person can be:
a fellow worker – another person who works for that employer;
a trade union official who is employed by a trade union; or
a lay trade union official as long as they have been certified by their trade union as having experience of or received training in acting as a worker’s companion at grievance or disciplinary hearings.
Workers may choose an official from any trade union to accompany them at a disciplinary or grievance hearing, regardless of whether the union is recognised or not. However, where a union is recognised in a workplace, it is good practice for workers to ask an official from that union to accompany them.
Trade union officials or colleagues are under no legal obligation to perform the role of companion. If an employee wishes to be accompanied by someone other than a colleague or a trade union official, for example, a friend or an adviser, they can ask for the employer's agreement to this but, the employer does not have to agree. If the companion is a colleague they have the right to paid time off during working hours to attend the meeting. If the companion is a trade union official with the same employer as the employee they have the right to paid time off for trade union duties.
The companion is allowed to make a statement at the hearing and to discuss matters with the worker during the meeting. The companion may also sum up the worker’s case and respond on the worker’s behalf to any views expressed at the meeting. The companion has no right to answer questions on the worker’s behalf, or to address the hearing if the worker does not wish it.
Under the statutory disciplinary and grievance procedures if the employer does not allow the employee to be accompanied by a colleague or trade union representative, it could be argued that this is a breach of the statutory procedure and the employee should not be expected to comply with the rest of the procedure. However, employees should be advised to continue to follow the grievance procedure if at all possible. Otherwise, the employee risks a tribunal finding that it is their fault that the procedure has broken down, resulting in a reduction of any tribunal award.
If the employer fails to allow a companion to attend a meeting or fails to re-arrange a meeting to a reasonable date when a companion cannot attend on the date originally proposed the worker can make a complaint to an Industrial Tribunal. The worker also has the right not to suffer any detriment by their employer because they exercise this right to be accompanied.
Further information on the right to be accompanied is available from your local CAB or from the Labour Relations Agency on 028 9032 1442 or from the website at www.lra.org.uk.
Siobhan Harding is an Information and Policy Officer with Citizens Advice