One of our employees is involved in a disciplinary process. He has asked for a named trade union representative to accompany him to the disciplinary hearing. The Company have had issues with this particular representative before and would prefer that he did not attend as the employee’s companion. Do we have to allow this trade union representative attend the disciplinary hearing?

Patricia Rooney writes:

A worker’s right to be accompanied at a disciplinary hearing is set out in the Employment Relations (Northern Ireland) Order 1999. Where a worker makes a reasonable request to be accompanied at a disciplinary hearing, his companion may be:-

• A trade union official employed by the union;
• A trade union official who has been certified by the union as having training in acting as a worker’s companion; or
• The worker’s colleague.

Should a worker make a reasonable request to be accompanied by a trade union representative, there are no requirements that the trade union has to be recognised by the employer; have any members at the place of work or even that the worker is a member of the trade union. If you have any queries in relation to the representative’s right to accompany your employee at the disciplinary hearing, you could ask the trade union to provide the appropriate written certification that representative had the necessary training to act as a worker’s companion.

An employer’s failure to allow its employee to be accompanied at a disciplinary hearing entitles the employee to issue a claim at the Industrial Tribunal who may award up to 2 weeks’ pay.

I am aware of circumstances where an employer has objected to a specific companion proposed by an employee and invited the employee to nominate an alternative person to act as his companion throughout the disciplinary process. This has been against the background, as in your particular case, where the employer has had prior dealings with the proposed trade union representative and was of the view that that companion’s presence at the disciplinary hearing would not facilitate a smooth disciplinary process.

Matters have moved on however and in 2013, the Employment Appeal Tribunal in England, in the case of Roberts, held that the right to choose a companion rests solely with the worker concerned. This is provided the worker exercises a reasonable request to be accompanied at a disciplinary hearing. It is not that the employer believes the worker’s proposed companion is a reasonable person to accompany him.

This case has considerably reduced the circumstances therefore where an employer can legitimately object to the worker’s choice of a companion. In March of this year, ACAS amended their Code of Practice on Disciplinary and Grievance Procedures to reflect this situation confirming that the employer cannot prevent the worker’s choice of companion provided the worker has made a reasonable request to be accompanied. Here, the LRA have consulted on a similar amendment to their Code of Practice and it is to be anticipated that similar provisions will apply in their Code.

Consequently, there is a risk that your refusal to allow your employee to be accompanied by his personal choice of companion would fall foul of your statutory obligations. Even if you were to suggest he nominates an alternative companion, your refusal to allow his initial chosen representative could amount to a breach of his right to be accompanied and would entitle him to lodge a claim with the Industrial Tribunal. Even this technical breach of your statutory obligations would allow the Tribunal to award damages.