Can the employee have a Trade Union rep with them?

We’ve been asked this question several times in the last month.

An employee has the statutory right of accompaniment at any meeting where you might decide to take action in relation to them. So disciplinary hearings , dismissal hearings and appeals all fall within that definition as do grievance hearings (even though these are initiated by the employee).

Consultation meetings (unless action is to result), investigation meetings and communication meetings do not fall within this requirement. By “communication meetings” I mean ones in which you communicate expectations to the employee. They do not result in warnings as such but you may want to record that you have told the employee X, Y or Z. They might best be referred to as “having a word” but they must not contain a warning as such.

That said accompaniment is often allowed at investigation meetings and even consultation meetings as a matter of good practice and there may even be a contractual obligation to do so.

Who can accompany?

The ACAS Code says that the companion may be:

  • a fellow worker
  • an official employed by a trade union
  • a workplace trade union representative, as long as they have been reasonably certified in writing by their union as having experience of, or having received training in, acting as a worker’s companion at disciplinary or grievance hearings.

Incidentally it does not make any difference whether or not you, as an employer, recognise a Trade Union; the rights are the same.

Beware of representatives who are from the “Trades Union Council”; which is not the same as the Trades Union Congress (TUC). These people will not qualify unless they meet one of the three criteria above.

In the event of doubt, it would be advisable to warn the employee that the accompanier must meet one of the three requirements above. Certification can take the form of a card or letter. If you quote the ACAS Code of Practice then anyone who does not qualify will be in no doubt that you will refuse their presence.

Employers are often confronted with requests for parents, TU representatives generally and, more seriously, solicitors. There is no need to accept a parent or a TU rep who is not able to provide credentials. Nor is there any need to accept a solicitor as an accompanier (unless in your disciplinary procedure) and including them may well “up the anti”.

However, a well trained TU rep can be a great asset in one of these meetings provided they are of their own mind and do not come with a private mission. You may have to take the risk of the latter but, more often than not, you will be better off for their presence.

And you have the right of accompaniment too! Employer Solutions routinely provide skilled and experienced HR Advisers to accompany clients at these meeting.

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