Disciplinary/Grievance Hearings

EMPLOYMENT / PENSIONS

Disciplinary/Grievance Hearings

Adam Brett considers the right of an employee to be accompanied at a disciplinary/grievance hearing.

Disciplinary/Grievance Hearings

Employers are often confused as to who may accompany an individual summoned
to a disciplinary (or grievance) hearing. The right to be accompanied is set out in Article 12 of the Employment Relations (Northern Ireland) Order 1999 and previous confusion over the role of a companion has now been clarified by Article 18 of the Employment Relations (Northern Ireland) Order 2004.

The companion

The employer must permit the employee to be accompanied by a single companion to be chosen by the employee; the companion must be:

• employed by a trade union of which he is an official;
• an official of a trade union whom the Union has certified in writing; or
• another of the employer's employees.

It is irrelevant whether or not the Union is recognised by the employer and whether or not the employee is a member of the Union.

Alternate

If the chosen companion is not available, the employee can propose an alternative time. If this time is reasonable and is within 5 working days after the date proposed by the employer then the hearing must be postponed to that date/time.

The companion must be allowed time off during working hours to accompany the employee.

Role

The role of a companion has previously caused some confusion and Article 18 of the 2004 Order recently clarified this. The employer must permit the companion to address the hearing in order to put and sum up the employee's case, respond on the employee's behalf to any view expressed at the hearing and confer with the employee during the hearing.

Some employers have been concerned that the companion could undermine the disciplinary hearing due to uncertainty about his role. Article 18(2)(c) now clarifies that the employer is not required to permit the employee's companion to answer questions on behalf of the employee, address the hearing if the employee indicates that he does not wish his companion to do so or address the hearing in a way that prevents the employer from explaining his case or prevents any other person at the hearing from making his contribution.

Complaints

An employee may present a complaint to an Industrial Tribunal that his employer has failed, or threatened to fail, to comply with the provision allowing a companion to attend or carry out the function. Where a Tribunal upholds the complaint,
it can order the employer to pay compensation not exceeding 2 weeks pay. More importantly, a failure to comply may render any dismissal unfair or provide grounds for alleging a detriment or constructive dismissal (with significant financial consequences).

Detriment

An employee has the right not to be subjected to any detriment by any act or deliberate failure to act by an employer because he exercises or seeks to exercise a right to be accompanied or to act as a companion. There is no limit to the amount a Tribunal can award if a detriment is found. An employee dismissed for exercising his right to be accompanied or to be a companion may apply for Interim Relief, which will continue the employment until the outcome of a hearing of a full Tribunal.

Legal represention

There is no statutory entitlement to be accompanied/represented by a lawyer at a disciplinary hearing. However, fairness may require the employer to consider such a request from an employee. Common examples include a senior employee in a small business where there is no other appropriate employee and where the outcome of disciplinary action may have professional consequences on the employee's ability to engage in his job or profession beyond the dismissal. Requests should be considered carefully.

Further rights

These are merely the minimum statutory rights to be accompanied. Employers should check whether there is anything in individual contracts, in discipline/grievance procedures or in existing union or collective agreements which provide greater rights, for example a wider choice of companion.

Adam is a Partner and Head of the firm's Employment Unit advising on a range of employment related matters including equality, discrimination and unfair dismissal. Adam can be contacted at adam.brett@lestrangeandbrett.com

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