“Statutory Right to be accompanied at grievance or disciplinary meetings Statutory rights at work
A worker who is invited to attend a disciplinary or grievance hearing has the right, under the Employment Relations Act 1999, section 10, to be accompanied by “a trade union official.”
A recent Employment Appeal Tribunal (EAT) decision, in the case of Toal and another v GB Oils Ltd EAT/0569/13, held that, there is no statutory requirement for an employee's choice of Trade Union Official at a grievance hearing to be reasonable. (NB - Please read on to understand the context of this judgement)
The questions in this case were:
- Does the requirement for the request to be reasonable mean that the employer could object to the identity of the Trade Union Official chosen by the worker?
- Has a worker who chooses another Trade Union Official, in response to the employer's objection, waived any breach of the right to be accompanied by the first choice of Trade Union Official?
- A worker's right to be accompanied at a disciplinary or grievance hearing, under s.10 of the Employment Relations Act 1999, is not subject to the qualification that his or her choice of Representative is reasonable in relation to the identity of the Representative. The only qualification in s.10 in relation to the identity of the Representative is that he or she must fall within certain specified categories - essentially section 10 of the Act specifies a Trade Union Official.
- The employees, whose request to be accompanied by a particular individual was refused, did not waive their right under s.10 by later requesting a different representative. Statute and case law make it clear that it is not open to either the employer or the employee to waive a statutory requirement by any express or implied agreement.
- Section 11(3) of the Act provides for compensation of an amount not exceeding two weeks' pay where a tribunal finds that an employer failed to comply with s.10.This is not a penalty or fine, but is to compensate the worker for loss or detriment suffered as a result of the employer's breach. If there was no such loss, a tribunal cannot make a zero award, but the award should be nominal.
When can a worker be accompanied?
The statutory right to be accompanied applies to workers and not just employees. It therefore covers casual, temporary and agency workers too. It applies when:
- A worker is required or invited by his or her employer to attend a disciplinary or grievance hearing, and
- The worker reasonably requests to be accompanied at the hearing.
A PCS Rep has the right, at the hearing, to:
- Address the hearing, but not to answer questions on behalf of the worker
- Confer with the worker during the hearing
What is a disciplinary hearing?
A disciplinary hearing is defined (section 13(4)) as a hearing which could result in:
- The administration of a formal warning to a worker
- The taking of some other action in respect of a worker
- The confirmation of a warning issued or some other action taken.
A grievance hearing is defined (section 13 (5)) as a hearing which concerns the performance of a duty by an employer in relation to a worker. According to the Acas statutory code of practice, paragraph 34, this would apply where the complaint is that the employer is not honouring the worker’s contract or is in breach of legislation.
The ACAS Code of Practice, paragraph 1, describes grievances as “concerns, problems or complaints that employees raise with their employers”. When a problem, is reported to management, this could impose a duty on the employer to take some action, since a failure to do so could result in a breach of the employer's duty of trust and confidence. Issues of harassment and bullying also impose duties on employers, and so involve a duty on the part of the employer. Issues of equal pay involve a duty, but a dispute about a pay rise would probably not, since there is normally no legal duty on an employer to award a pay rise.
Can a manager veto a Trade Union Official?
No. Under section10 (2a) of the Employment Relations Act 1999, the employer must permit the worker to be accompanied by “a trade union official” chosen by the worker.
If the chosen PCS Representative is not available at the time fixed for the hearing, then the worker has the right to postpone the hearing, under section 10 (4) of the Act, to another time which is reasonable and within five working days of the first working day after the date proposed by the employer.
The statutory right is a right that exists for all workers, no matter how many employees there are or whether or not there is trade union recognition by the employer.
