Q What is the role of the companion in disciplinary and grievance meetings?
A Employees have certain rights during disciplinary and grievance processes. One is the right of the employee to bring someone along to the meeting. Often, the identity of the companion and his or her role in the process are causes of confusion for employers.
It is important at the outset to distinguish between investigatory and disciplinary meetings. A meeting to investigate an incident is simply a fact-finding exercise, prior to formally putting allegations to the employee in the context of a disciplinary hearing. There is no right for employees to be accompanied at investigatory meetings, unless an employer’s internal policies provide for accompaniment at this stage.
Recent case law has established that where a person’s professional career is at risk, for instance in the case of serious misconduct by a health professional or teacher, it is appropriate for the employee to be afforded the right to legal representation in internal disciplinary hearings. However, in the vast majority of cases, the right to be accompanied at disciplinary and grievance meetings is limited to accompaniment by a work colleague or trade union representative.
Employers should realise that the right of accompaniment by a trade union representative applies irrespective of whether or not the employer recognises and negotiates with a trade union regarding its employee relations issues.
Employers are at liberty to extend the right of accompaniment beyond that granted by law. For instance, sometimes employees will request to be accompanied by a friend or family member from outside the organisation. Employers should consider these requests and act reasonably on a case-by-case basis in deciding upon whether to allow such accompaniment.
It is important to understand the role that the companion can play in the meeting. Employers can sometimes mistakenly believe that the companion is there simply to provide moral support and act as a witness for the employee but can take no active part in the hearing. However, the companion has the right to address the meeting, make representations on behalf of the employee, challenge evidence and sum up the employee’s case. The companion cannot, however, answer questions on behalf of the employee. When an employer asks a question to the employee who is the subject of the hearing and the question clearly requires to be answered by that person, the employer should insist that the companion does not answer the question on behalf of the employee to whom the question is addressed.
The disciplinary and grievance procedures are designed to assist employers and employees in fairly addressing difficulties that arise in the workplace. The right for the employee to be accompanied at hearings is an important part of the process and it is therefore important that employers understand both who can attend hearings as a companion and what the role of the companion at the hearing is. If an employer is in any doubt, specific advice should be sought prior to the hearing.
This article is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to get in touch.
Mark Mason is an employment lawyer, based in Mallusk. He can be contacted at 028 9084 8899.