The Right to Accompaniment [Video]Posted in : Back to Basics on 2 June 2016
The Employment Relations (Northern Ireland) Order sets out the right for workers and employees to be accompanied by either a trade union representative or a fellow colleague at either a disciplinary hearing or a grievance hearing. The legislation also sets out the protections applied to those who exercise or attempt to exercise this statutory right.
Employees are entitled to bring an industrial tribunal claim if an employer fails to comply with the legislation. They are protected from being subjected to detriment, or being dismissed because they have exercised their statutory right. The exercise of this right is also set out by the Labour Relations Agency Code of Practice on disciplinary and grievances, but it seems to be that the disciplinary scenario vexes most employers. So that's what I'm going to discuss today.
When does the right apply then? Rather, it applies if a worker is required or is invited to attend a disciplinary hearing by their employer. The second question we are quite often asked then is, what actually constitutes a disciplinary hearing?
Well, for the purpose of this right, hearings are those that can result in a formal warning, a disciplinary action including suspension without pay, dismissal or demotion for example, or in circumstances where a confirmation of a warning is being given. For example through the appeal process.
Notably, the right applies in relation to both capability hearings as well as misconduct hearings. However, an employer should be aware that meetings that are merely designed to investigate allegations and are not disciplinary hearings are therefore not captured by the right, and the right does not apply in this context.
However quite often, we will advise that the reasonable employer will allow a trade union representative or a fellow colleague to accompany.
What about, then, the reasonable request to be accompanied? Well, it was thought at one time that a request would not be reasonable if the choice of companion was not reasonable. Either the employer didn't like the individual for some reason, there was a personality conflict, or they thought that this individual was going to be disruptive in some way.
The Employment Appeals Tribunal addressed this very point in the case of Toal in 2013, and it established that a worker has an absolute right to accompaniment, provided that individual falls within the statutory categories. i.e., that they are a fellow worker or a trade union representative.
To focus on that point then, as I have said, the companion should be someone who is either employed by the trade union of which they are an official, and a union official who has been certified as having the appropriate experience in relation to these hearings. Or they are another of the employer's workers.
There are a number of other common misconceptions that are often bandied about. The first being that the worker subject to disciplinary hearing has to be a member of the trade union to which the official belongs. That is not correct.
The second common misconception is that the trade union in question has to be one that is recognised by the employer. Again, that's not right. There are a lot of employers who don't recognise any trade unions.
Of note also, is the fact that there's no general right to bring a lawyer to a disciplinary or grievance hearing. However, there may be the entitlement to do so in some very limited exceptions, and I'll address that point briefly towards the end.
What about the rights of the companion then, after having addressed the rights of the employee? Well, they are entitled to paid time off, and they also must not be subject to any detriment or dismissed because of their role as an accompanier.
What happens in circumstances where the companion is unavailable? Well, the employee has the right to suggest an alternative time not more than five working days later. Again, that is a practice that has been dictated by the Labour Relations Agency Code of Practice. The employer's key personnel obviously have to be available at the time suggested. So there's a bit of a balancing act to be played.
The role of the companion then, well this is very important point. This is actually quite a limited role. They are only permitted to address the disciplinary panel. For example, they can put the worker's case forward. They can sum up, and they can confer with the worker during the course of the hearing. They do not have a right to answer questions on the employee's behalf, and they also do not have a right to address the hearing, contrary to the expressed consent of the worker.
Ultimately and very importantly for the employer, they must not act in a way that prevents the employer explaining its case, or prevents any other person making a contribution to the hearing.
What about remedies in relation to a breach of the statutory right? Well, quite simply a worker is entitled to bring a claim to the industrial tribunal to have such a breach remedied.
Finally then, legal representation. Well, as I've mentioned, there is a no general right to legal representation, but make sure you check your contracts of employment or your handbooks. Because if you refer to this and you afford the employee the right, then you're exposed to a breach of contract claim should you breach that provision.
There are some NHS contracts, for example, that give employees a specific right to legal representation. Also of interest, the Article 6 European Convention of Human Rights may be engaged. That's the right to a fair trial. This in practice would only apply, where the outcome of the disciplinary proceedings would have a substantial influence, on the decision of a regulatory body that has the power to ban somebody from their profession.This article is correct at 02/06/2016
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