It is a legal right for workers to have the option to be accompanied in any formal aspect of the disciplinary and grievance process. This legal right should be offered automatically when inviting the individual to a meeting and it should be clearly laid out who this can be. The law allows that a fellow colleague or trade union representative can attend the hearing with the individual in support and make the case for the individual. although they cannot respond to questions on the individual’s behalf.
A companion in a hearing is a positive thing, it gives the person support through what can be a very challenging and emotional time and often help them to put their case forward in a clearer way which inevitably helps to make the hearing fair.
A recent case (Talon Engineering Ltd v Smith ) further clarified this law, particularly in relation to when it would be appropriate to postpone the meeting when a worker chosen companion us unavailable. It can be frustrating when you are looking to conclude a matter and you get a request to postpone on this basis BUT in order for the hearing to be considered fair and therefore avoid a claim for unfair dismissal, it is important that consideration is made to this. Typically a postponement would be for no more than 5 days, however as was the case with Talon, the request may be longer than this. In this case, the request was for a couple of weeks to allow the trade union representative to be available. In this case, the employer had already delayed the case due to the worker’s sick leave and therefore they declined to make this further delay.
The worker was able to successfully claim unfair dismissal at the tribunal, a decision which was also upheld on appeal. Even though the law states that a worker can request an alternative time which is reasonable and within 5 working days of the original hearing, the decision to decline to postpone on the basis that the proposed delay was more than 5 days was deemed as unfair.