Wed 04 Mar 2020

Broadening of right to be accompanied under discussion

It is being reported that the UK Government are considering allowing a wider category of representatives into disciplinary and grievance hearings.  

Currently workers can be accompanied to disciplinary and grievance hearings by a trade union representative or fellow worker.  The individual who is the subject of the disciplinary process does not need to be a member of the trade union to which the official that is accompanying him or her belongs, nor  does the trade union need to be one that is recognised by the employer.  However, it is probably safe to assume that a TU official is more likely to agree to represent the individual making the request if he or she is a member of their union. 

It is, of course, always open to the employer to agree to someone other than a TU rep or fellow worker attending, but they will not be in breach of the statutory right to be accompanied if they do not.  In some limited cases it may be a reasonable adjustment to let someone else attend, or there may be a broader contractual right, and in exceptional cases workers may be able to establish a right to legal representation as a result of the Human Rights Act 1998, if the hearing may have a significant bearing on their professional registration.  Aside from these narrow exceptions, generally speaking, the choice of companion is a limited one.

However, the Government are reportedly considering a change to the Employment Relations Act 1999 (which sets out the statutory right to be accompanied) to broaden the category of individuals who could accompany workers to disciplinary and grievance hearings.  This is being presented as a way of ensuring that non-union members have access to trained representation in the same way that their colleagues who are union members do.  According to a report in the Sunday Telegraph, employees would be able to choose to be accompanied by a lawyer, as well as a representative of a body other than a union.

The right to be accompanied is one way for trade unions to attract membership - arguably expanding the right beyond the sphere of unions could have an impact on the number of workers who choose to join in the future.  However, it remains to be seen exactly how, or indeed if, this proposal might be brought forward for consultation, given the controversy it is sure to generate from both employers and trade unions.

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