Nottingham Employment Law

Disciplinary Hearings: Who Can Accompany You?

The law says that you can be accompanied by a companion who is either:

- A full time officer of a trade union
- A trade union representative - usually but not necessarily from your workplace
- A colleague from the same workplace

What can your companion do at the hearing?
Again, the law is clear on this. The companion may make an opening address on your behalf at the beginning of the hearing. After that they cannot address the hearing again unless your employer agrees. However you may confer at any time, and they can take detailed notes of the hearing which will be very useful if your case ever goes to appeal or ends up in an Employment Tribunal or other court.
But this is a legal minimum. Where unions have negotiated a procedure it is likely that your companion will be free to effectively represent you and be able to speak on your behalf at any time and ask questions of any witnesses.

Before a hearing you should try and find out what your companion will be allowed to do and say. You should certainly take sufficient time to really go through your case and work out what you and your companion will say.

If your companion is not free at the time when the meeting is organised, you can ask for a postponement of up to 5 working days and ask for a different time within those 5 days when your companion is free. The alternative time must be a reasonable one.
What happens if you are not allowed to bring a companion?

If your employer refuses to let you bring a companion, you should not attend a formal hearing, Instead you should put in writing that you will not attend until you are allowed to bring a companion with you as is your right under the Employment Relations Act 1999.

If you have a meeting with your employer that you think is entirely informal but he or she then tries to give you a formal warning or impose some other punishment, then you should politely ask for the meeting to stop at that point and then be reconvened at a time when you can bring a companion.

If they still go ahead, you should write after the meeting and ask for it to be held again with your chosen companion present. You should also write down as full a note as possible describing what happened at the meeting. But don't forget you can be dismissed on the spot without any hearing for gross misconduct (see above).

- If your employer refuses to allow you to bring a companion you can complain to an Employment Tribunal.
- If they sack you because you tried to take a companion into the hearing, you can claim unfair dismissal at an Employment Tribunal. Unlike some unfair dismissal claims how long you have worked for your employer does not matter.
- If you are sacked for other reasons, but you were not allowed to take a companion into the hearing then you are likely to have a strong case at a Tribunal, and you may well get extra compensation.
- If you lose out in some other way - for example by losing performance related pay - you can make a claim to an Employment Tribunal.

Any complaint to an Employment Tribunal must be made within three calendar months of the day on which your employer refused to allow you to be accompanied or from the date of dismissal if you are dismissed.

If you are still employed by that employer, the tribunal can order the employer to hold the hearing again and allow you to be accompanied. If you have been dismissed you will be entitled to compensation for the breach of your right to be accompanied as well as compensation for the dismissal if it is found to be unfair. This is a complex legal area and you should seek advice from your union or another advice agency.

Does a union have to provide a companion?
While unions will generally do all they can to help a member in genuine difficulties at work - that's what they are there for after all - the law does not require them to provide a companion for their members or for anybody else.

A union will generally judge whether the companion should be a local voluntary union rep (which is more likely) or a full time officer of the union. Some unions have rules saying that they cannot provide representation for members until they have been in the union for a certain amount of time. This requirement is sometimes considered necessary to prevent people joining a union suddenly when they are in trouble, getting free advice and assistance, then leaving, at considerable expense to the union. Some unions will make a judgement about whether a grievance is well-founded and likely to succeed before agreeing to represent someone.

There is no obligation on a workplace colleague to act as a companion either. However, if they do, and your employer makes life difficult for them as a result, they can claim compensation at an Employment Tribunal. If they are dismissed as a result of accompanying you they can claim unfair dismissal regardless of how long they have worked for your employer.

Union Recognition
If you join a union, you will probably want your union to be able to negotiate your pay, hours and holidays as well as represent you if you get into trouble. Pay is usually higher and working conditions much better where a union is recognised. Unions act as a collective voice for workers in the workplace and stop your employer from being able to pick on you individually for asking for a pay rise, or better holidays. Good employers recognise unions voluntarily, some encourage new workers to join the union.

But not all employers are good employers. Some say they are neutral, which can mean they will expect unions to go through a full legal process to gain recognition. Others are downright hostile to unions and will do anything they can to stop unions organising or having any role in their workplace.

But the new law compels even these employers to negotiate with a union if there is sufficient support.

The process is complex and you will need to work carefully with a union to make sure you are following the proper procedures. But basically you will either need to show that a majority of workers are union members or that a majority vote for union recognition in a ballot and at least four out of every ten workers able to vote have voted. We do not try to explain the full process here as you will need to work closely with a union to make it happen.

If your employer treats you badly or sacks you because you are a union member, trying to recruit other members or campaigning to get recognition then the law protects you. You should take advice from your union about taking a claim to an Employment Tribunal.
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  "Having the representative support me through my disciplinary relieved some of the worry that my company put me through. I felt that without the representatives help the outcome would have been dismissal. The representative ...
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