Where does an employer stand if an employee wants to bring a trade union representative into a disciplinary meeting, rather than a colleague? Gillie Scoular and Esther Smith advise.
We do not have any trade union on site, but a member of staff pays a union fee and wants to bring a union rep into a disciplinary meeting rather than a work colleague. Where do we stand on this?
Gillie Scoular, partner, Mills & Reeve
The right to be accompanied at disciplinary (and grievance) hearings is not as simple as it sounds. An employee (or worker) only has a statutory right to be accompanied at a disciplinary hearing by someone who is either:
- An employee of a trade union of which he is an official
- An official of a trade union whom the union has certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings
- A work colleague
A trade union 'official' has a particular statutory meaning and must either be an 'officer' of a trade union, or someone who has been properly elected or appointed to be a representative of its members. You can ask for written confirmation of this from the trade union concerned . The fact that you do not have a trade union on site does not matter - your employee does not have to be a member of the trade union, nor do you have to recognise it for the right to apply. The right is, however, subject to the employee’s request being 'reasonable'. What that means is not entirely clear, but it would not normally be reasonable for a worker to insist on having a companion who would prejudice the hearing or on someone from a remote geographical location if someone else was suitable and willing to attend. Assuming the union rep in your query is suitably qualified, therefore, you must allow the employee to bring him or her to the disciplinary meeting rather than a colleague. This is not normally a problem as the role of the companion is quite limited. Also remember that the right to be accompanied only applies to disciplinary hearings - these are hearings that could result in:
- A formal warning being issued to the member of staff
- The taking of some other disciplinary action, such as suspension without pay, demotion, or dismissal
- The confirmation of a warning or some other disciplinary action (such as an appeal hearing)
The right does not therefore apply to redundancy consultation meetings, investigatory meetings or return to work meetings. Finally, remember that, even though there may be circumstances when this is appropriate, an employee has no statutory right to be accompanied to a disciplinary hearing by a friend, family member or lawyer.
Gillie Scoular is a partner and employment law specialist at Mills & Reeve LLP. For further information, please visit Mills & Reeve.
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Esther Smith, partner, Thomas Eggar
The statutory right for an employee to be accompanied at a disciplinary (or grievance) hearing are contained in the Employment Relations Act 1999, and include the right to be accompanied by either a fellow employee or a trade union representative. The legislation does not provide that the employer has to recognise the union in question for collective bargaining purposes, and indeed does not even require the employee to be a member of the trade union in question, although in reality very few union representatives will have the time or inclination to support a non-member. Therefore your employee has every right to bring a union representative to the meeting, even though you do not recognise the union. You are entitled to ask for verification of the representative’s status as a union member, but other than that there is nothing you can do to prevent this person accompanying your employee.
Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.