POA Circulars

161 | 15.12.2010

Legal: The right to be accompanied

It has been drawn to the Executive’s attention that a number of POA members are encountering resistance to them being accompanied to Disciplinary Hearings, Investigations, Grievance and other meetings by the companion of their choice.

The Executive believe it is appropriate to remind all members of what their right is with regards to being accompanied by a companion of their choice. The right to be accompanied is provided by Section 10 of the Employment Relations Act 1999.

Section 10 provides that an employee has the right to be accompanied at a Disciplinary Hearing or Grievance meeting by a Trade Union Official or a fellow worker where the employees reasonably requests (orally or in writing) to exercise this right. 

Informal interviews which do not result in a formal warning or other action will be not be covered by Section 10.  If an Employer refuses a request by an employee to be accompanied at an informal interview this is unlikely to give rise to a claim for a breach of Section 10. However, the Executive advise all members to request to be accompanied at all meetings.

If a member is refused the right to be accompanied to an informal interview they are obliged to still attend the interview, albeit under duress.  If it becomes clear during the interview that formal disciplinary action may be taken, the member should ask for the interview to be terminated and for a formal hearing convened at which the member has the right to be accompanied. 

For the purpose of Section 10, a union representative is either a full time official or someone certified by their union as having the necessary experience or training to perform such a role.  The Employer does not have to recognise the Union.

Where the chosen companion cannot attend on the date proposed for a hearing or meeting the worker can offer an alternative date so long as it is reasonable and within 5 working days, although the Employer may agree to extend this period.

A worker can complain to an Employment Tribunal if their Employer fails to comply with a reasonable request to be accompanied.Any member who encounters difficulties about being accompanied by a POA official should refer their Employer to Section 10 of the Employment Relations Act 1999. If the Employer still refuses to allow them to be accompanied by a POA official at a Disciplinary Hearing or Grievance meeting or refuses to allow a reasonable request to move a hearing to a date within 5 working days of the original date, they should raise a grievance and apply for legal advice. 

The time limit for issuing proceedings in the Employment Tribunal regarding a breach of Section 10 is three months less one day from the date upon on which the employee’s request was refused.  Members should not wait for the outcome of their grievance before applying for legal advice.

I would ask that you bring the content of this circular to the attention of your members.

Thanking you in anticipation of your co-operation

 

Yours sincerely

 

 

STEVE GILLAN
General Secretary