LOW PAY UNIT - ADVICE LEAFLET

Your right to representation

Since 4 September 2000 all workers had have the right, granted by the Employment Relations Act 1999, to be accompanied to discipline and grievance hearings. Should you find yourself in need of representation, this leaflet will help you know your rights. Remember, these are minimal rights - your contract of employment may give you additional protection.

Your new right

If you have to attend a disciplinary or grievance hearing and you make a reasonable request to be accompanied by a companion, your employer must agree.

Who is covered?

The new right applies from the first day of employment and covers 'workers' not just employees. It covers all those who are not genuinely self-employed. Homeworkers, part-time, casual, temporary and agency workers are all covered.

Which hearings are covered?

Not all disciplinary and grievance hearings are covered. The new right applies to the formal stages of a disciplinary hearing , ie. when you face:

• a formal warning - written or verbal;
• demotion or some other similar action;
• suspension;
• dismissal;

It also applies to appeal hearings where a decision to give you a warning or take similar action is confirmed.

Grievance hearings are covered when they are about your employer's legal obligations. This might include a grievance over existing contractual terms, expressed or implied. Bullying or sexual harassment cases concerning rights under race or sex discrimination law are also covered.

Until case law makes it clear exactly which hearings are covered, ask for someone to go with you to any disciplinary or grievance hearing. Employers are likely to agree out of caution, a refusal could be used as a basis to appeal against any decision taken at the hearing.

Who can accompany you?

As long as the request is reasonable, you are free to choose your companion, who must be:

• another of your employer's workers; or
• a full-time trade union official; or
• a lay official of a trade union who is certified by the union as having experience/training as a companion.

The official does not have to be from a union recognised by your employer. Your choosen companion has the right to turn down your request - and no pressure should be put on fellow workers to accompany you.

What does a companion do?

The presence of a companion can make an important difference at a hearing. As well as giving you support, a companion's very presence can make an impact on the way the hearing proceeds.

Your companion is not there to represent you and may not answer questions for you, but may address the hearing and confer with you during the hearing.

Importantly s/he can also make a written record of the meeting that is independent of the employer's record. This will be very useful in any appeal, or at an employment tribunal.

What rights do companions have?

Under Section 10(6), companions have the right to reasonable time off during working hours to accompany another worker. This could include time for your companion to become familiar with the situation, read relevant documents and meet with you before, and after the hearing.

Anyone agreeing to act as a companion is protected against any kind of detriment (like missing out on promotion) through acting as a companion. If this happened, s/he could bring a claim in an employment tribunal against the employer.

S/he would also have the right to claim unfair dismissal if dismissed for acting as a companion. Dismissals for this reason would be automatically unfair. Protection is from the first day of employment and covers all 'workers' not just employees.

What if your companion cannot make the date of the hearing?

If your companion can't make the date of the hearing, you can propose a reasonable alternative date which must be within five working days of the original. As long as the new date meets these requirements, your employer must postpone the hearing to the proposed new date.

How to make your request

Your request must be 'reasonable'. It does not have to be in writing, but it would be wise to do so, in case your employer refuses.

What is 'reasonable' is not defined, but in certain circumstances employers may refuse or modify a request - for example, by rejecting your choice of companion if s/he works for the company at a distant location, is a witness, or some how implicated in the situation.

What if your reasonable request is refused?

You can make a claim in an employment tribunal if your employer:

• refuses to allow a companion at a hearing where the right exists; or
• refuses to re-arrange a hearing when you reasonably request to do so because your companion cannot attend.

Your claim should be made within three months of the refusal. Maximum compensation is two weeks' pay, capped at £240/wk.

You are protected against detriment for exercising your right to be accompanied and can bring a claim for unfair dismissal if you are sacked for doing so.

For further details contact:

ERAS
Low Pay Unit
9 Arkwright Road
London NW3 6AB
Advice line: 020 7413 7385

See our links section for other sources of advice.