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Who can request a companion?
The Employment Relations Act 1999 gives workers the right to attend a disciplinary or grievance hearing with a companion.
When can a companion be requested?
The Act defines a “disciplinary hearing” as one that could result in a formal warning, or the taking of some other action by the employer, or the confirmation of a warning issued. This does not appear to include informal meetings, however if an informal meeting is called and as a result the worker has a written warning issued and placed on their file, the meeting can be deemed to be formal in retrospect.
It is important to note that an employer is obliged to agree to reschedule the meeting if the worker or the chosen companion cannot attend, as long as the hearing is rescheduled within 5 working days.
Who can be requested?
The law is clear that a worker cannot call whoever they want to be their companion. A companion must be either a paid official of a trade union, an unpaid official of a trade union certified as being competent to act as a companion or another of the employer’s workers. Although the law states that the worker is entitled to a companion when one is “reasonably requested”, the case of Toal & Anor v GB Oils Ltd has made it clear that this ‘reasonableness’ does not apply to the worker’s choice of companion. As long as their request fits the above criteria, their options appear to be limitless. If anything this looks like being extended following the Leeds Dental Team Limited v Mrs D Rose case which held that not allowing a former owner to be a companion was a breach the law.
What is their role?
When present at a hearing the companion is entitled to put forward the worker’s case, sum it up, respond to the views expressed and to confer with the worker. They do not have the right to answer questions on behalf of the worker, be present without the consent of the worker nor prevent the employer or anyone else properly participating in the hearing. Overall it is safer to allow your workers’ requests for a companion when calling a disciplinary hearing.Andrew WallaceTrainee Solicitor – Employment Law
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