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“I want to discuss a number of issues with one of my employees. His conduct has been poor and I also wonder whether I need his position at all? He is insisting however, that he won’t meet me unless his union is present, but we don’t even recognise a union? Can I ignore his request and hold the meeting?”
All workers have a right to be accompanied to a disciplinary or grievance hearing if he or she so requests it. The statutory right (which your contracts cannot give less than), is the right to be accompanied by a fellow worker or a trade union representative.
Many employers think that if they don’t recognise a union, then a union representative has no right to attend. That is wrong.
Whether or not the right to be accompanied applies depends on the purpose of the hearing. The right applies to all disciplinary hearings which could result in the worker either receiving a formal warning or the employer taking “some other action” with regard to the worker. It also applies to disciplinary appeal hearings. The right also applies to grievance and grievance appeal meetings.
In the scenario above however, note that the right does not apply to an informal meeting unless it falls within the categories outlined above. It also does not apply to a formal meeting which may result in dismissal on other grounds, for example on the grounds of redundancy or because of a business re-organisation.
Don’t forget that you are entitled, if the employee is a member of a union and wants to bring his union rep, to ask for certification from the Trade Union official to prove who they are.
Should the right ever be extended?
In some professions and particularly in the public sector there can be a right to bring a legal representative to a disciplinary hearing. Where the outcome of the hearing might result in a substantial or decisive effect on the worker’s civil rights or affect their ability to continue working in a chosen career or profession, then arguably it can be extended. In the motor industry, however, this is unlikely to apply in most circumstances.
Note, however, that if an employee suffers from a disability which adversely affects them at the hearing, then it may be a reasonable adjustment however to extend the statutory right if the employee requests the same.
What can they say at the hearing?
When conducting the meeting remember that the person accompanying the meeting doesn’t just have to be a silent witness, and can talk and make representations. They should not, however, become unduly disruptive or answer direct questions put to the employee themselves.
Remember, however, that as this is a statutory right there can be claims if you deny the worker the right to be accompanied or subject the worker or the accompanying person to any form of detriment. Dismissal on these grounds can also be automatically unfair.
Don’t forget that sometimes the trade union can be helpful. Much would depend on the character of the person accompanying. If the employee has been afforded the right to be accompanied by a trade union official, it can also be harder for the employee to later raise that matters were unfair, as they had advice of the union at the relevant time.
Lastly, don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
Andrew Macmillan, Solicitor, Motor Industry Legal Services