Employment Contracts

by Kate Russell

Formal disciplinary and grievance hearings

Tip

Confirm the authority of the union official to act as a companion and check his identification.

Workers and employees are entitled to be accompanied at formal disciplinary and grievance hearings by a fellow worker or a trade union official of their choice, provided they make a reasonable request to be accompanied. They also have the right to a reasonable postponement of the hearing, for up to five days from the date that the meeting was originally scheduled, if a chosen companion is not available at the time proposed for the hearing by the employer.

If a worker is a union member but your organisation is not unionised, he has the right to be accompanied by his full-time official.

There’s no statutory right to be accompanied by a legal advisor. Two cases recently suggested that the employee’s right to a fair hearing would be compromised by the employer’s denial of legal representation. However, in 2011 the Supreme Court reversed this approach in the important case of R (on the application of G) v Governors of X School and Y City Council [2011], and the result is that employees at disciplinary hearings do not have an automatic right to legal representation.

Example

G was a teaching assistant who allegedly kissed a boy of 15. The school took the matter to a disciplinary hearing. G asked to be represented by a solicitor, but was refused. He was dismissed and the governors were obliged to report this to the Independent Safeguarding Authority(ISA) where he would be considered for inclusion on the list of those unsuitable to work with children under the Safeguarding Vulnerable Groups Act 2006.

G issued judicial review proceedings, complaining that denial of legal representation at the initial disciplinary proceedings breached his rights under Article 6 of the European Convention on Human Rights, the right to a fair trial.

Initially he succeeded but on appeal to the Supreme Court, the Court found that Article 6 did not come into play at the initial disciplinary stage. The school was not concerned with G’s civil rights, merely his employment. The majority found that the hearing result would not have had a substantial influence on the later decision to place him on the list of people barred from working with children.

Lord Dyson in his lead judgment found that that the civil right in question was G’s ability to continue in his profession which involved working with children.Therefore a decision by the ISA to bar him would affect his civil rights and Article 6 would apply to those ISA proceedings.

In the view of the Court, it was not the school’s function to determine later proceedings concerning G’s civil rights. The only function of the school disciplinary panel was to determine whether G should continue to be employed and those proceedings did not have substantial influence over the ISA proceedings. The ISA is an independent body. In making the decision whether to place an individual on the barred list, it must assess fully the facts using its independent discretion. The court also recognised the risks surrounding a decision to require legal representation at disciplinary hearings.

The statutory right to be accompanied may only be exercised in relation to a formal disciplinary or grievance hearing. This is defined by the Employment Relations Act 1999 as a hearing that could result in

  • The administration of a formal warning to a worker by the employer
  • The taking of some other action in respect of a worker by the employer
  • The confirmation of a warning issued or some other action taken.

Workers have the right to take time off during working hours in order to accompany fellow workers who are employed by the same employer.

In the case of Skiggs v South West Trains Limited [2005], the court confirmed that an employee does not have the right to be accompanied at a meeting held simply to investigate a formal grievance which has been raised against him.

The aim of a properly conducted investigatory meeting is to establish facts and gather information. This is not a disciplinary hearing to which the right to be accompanied applies, even though it could lead to disciplinary proceedings being taken. However, if you are conducting an investigatory meeting, you need to ensure that it does not turn into a disciplinary hearing. If the meeting becomes disciplinary in nature, adjourn it so that the proper procedures can be followed.

Example

S was a railway guard. In October 2002, the Depot Manager raised a grievance against S, accusing him of spreading rumours about a relationship between her and another guard at the depot.

S was invited to attend a meeting with another manager to discuss the grievance raised against him. He refused to take part in the meeting unless he had ‘appropriate representation’ in the form of a full-time union official and/or his barrister. SWT refused his request as it said the meeting was just an investigatory interview and he had no statutory right to be accompanied at such a meeting.

S complained that he had been denied the right to be accompanied under Section 10 of the Employment Relations Act 1999.

The Tribunal dismissed his complaint, concluding that he had no statutory right to be accompanied at an investigatory meeting. The meeting in question, being purely investigative, did not fall within any of the categories listed in the Employment Relations Act. A grievance meeting is a hearing concerning the performance of a duty in relation to a worker. Since the meeting was not to consider any duty owed by SWT to S it fell outside that definition too. SWT had not therefore breached S’s statutory rights in refusing to allow him to be accompanied. S appealed.

The EAT agreed that S had not been invited to attend a disciplinary or grievance hearing within the meaning of Section 10. The statutory right to be accompanied does not extend to a meeting held to investigate a formal grievance raised against an employee and rejected S’s argument that the definition of ‘disciplinary hearing’ is wide enough to include meetings that could possibly lead to disciplinary action at some point in the future.

Rights of a companion

A companion has the following rights:

  • To help a worker prepare for a formal disciplinary or grievance meeting
  • To ask questions on behalf of the worker
  • To make representations and sum up the case on behalf of the worker.

There is no right to speak in the place of the worker.

For more information see the topic on Discipline and Grievance.