Someone needs representatation at a disciplinary urgently

[Harry Bloomfield Esq]

Someone who speaks English not very well and not a member of a union
needs to find someone urgently to help her with a disciplinary.
Suggestion for who the might get to help for free please?

[Simon Parker]

An employee has the right to be accompanied by a relevant person (a
"companion") at a disciplinary hearing, (known as "the right yo be
accompanied").

The employee should inform their employer who they want to be their
companion as soon as practicable so that appropriate arrangements can be
made.

However, and this is where it gets messy, the companion must be either a
work colleague or a trade union representative certified or trained to
act as a companion.

If the person is disabled, their employer must make "reasonable
adjustments" which might include, for example, allowing a support worker
or someone with knowledge of the disability and its effects to attend.

Employers can allow someone other than the above, (for example a spouse,
partner or legal representative), to be a companion, but they do not
have to and there is nothing an employee can do if the employer refuses
and insists the companion is from one of the two legally mandated
categories.

You've already said the person isn't in a union so the only person they
can *insist* acts as a companion is a work colleague, and there will be
no charge for them attending.

However, if the employee wants a spouse, parnter, etc. to attend then
they will need to seek permission from their employer, which the
employer is entitled to refuse.

Probably not what you, or indeed they, want to hear but that is the law.

Regards

S.P.

[Roland Perry]

In message <jhujmg...@mid.individual.net>, at 21:53:35 on Mon, 27
Jun 2022, Simon Parker <simonpa...@gmail.com> remarked:

Will the work colleague be docked any pay for attending during normal
working hours?

>However, if the employee wants a spouse, parnter, etc. to attend then
>they will need to seek permission from their employer, which the
>employer is entitled to refuse.
>
>Probably not what you, or indeed they, want to hear but that is the law.
>
>Regards
>
>S.P.

--
Roland Perry

[Robert]

The employers own disciplinary procedures might allow a wider range of
people to accompany the worker.

[Simon Parker]

Short answer: No.

Longer answer: The colleague must be given paid time off to accompany
the worker to the disciplinary hearing. If the preferred colleague is
not available at the time scheduled for the disciplinary, it should be
rescheduled providing this is reasonable and permits the rescheduled
hearing to take place within a week of the orignally planned date for
the disciplinary.

Apologies for not having provided chapter and verse but the OP was
looking for an urgent answer so I responded setting out the facts of the
matter without reference to the relevant legislation.

The Right to be Accompanied is set out in the Section 10 of the
Employment Relations Act 1999. [1]

Regards

S.P.

[1] https://www.legislation.gov.uk/ukpga/1999/26/section/10

[Simon Parker]

Indeed they might, but without sight of them it is impossible to know
this, and as I've just pointed out in another post, detail was
sacrificed in order to provide a response requesting information "urgently".

I set out the position for the minimum that satisfies the Right to be
Accompanied. Even though it can't be insisted upon, a prudent employer
would allow an employee to be accompanied by their companion of choice
as it may reduce complications and issues futher down the line.

I hope I made clear in my previous response that, whilst it cannot be
insisted upon, an employer may permit a spouse, partner or legal
representative to be a companion without this being a legal right.

Many people may be surpirsed by the fact that they do not have an
automatic legal right to be accompanied by a solicitor at a disciplinary
hearing, unless that solicitor falls within subsection 3 of section 10
of the Employment Relations Act 1999 [1] or is permitted to act as a
companion because this is stipulated in the company's disciplinary
policies and procedures.

Regards

S.P.

https://www.legislation.gov.uk/ukpga/1999/26/section/10

[Harry Bloomfield Esq]

It happens that Simon Parker formulated :

> Indeed they might, but without sight of them it is impossible to know this,
> and as I've just pointed out in another post, detail was sacrificed in order
> to provide a response requesting information "urgently".

Thanks, yes that is clear. Unfortunatly I don't have a copy of their
employee handbook to be able to check the details. The person in
question had a mind set of going it alone, not trying to defend
themselves and just accepting the consequences, despite having good
mitigating reasons for breaking the rules.

[Robert]

No criticism of your excellent reply intended !
I seem to remember the NHS rules were quite generous but did exclude
Solicitors etc acting in a professional legal capacity.
Always thought this could appear unbalanced if the employer was fielding
a member of their Legal or HR dept who just happened to be or have been
a legal professional.

[Roland Perry]

In message <ji0pfg...@mid.individual.net>, at 17:44:32 on Tue, 28
Jun 2022, Robert <rob...@invalid.invalid> remarked:

>> I hope I made clear in my previous response that, whilst it cannot
>>be insisted upon, an employer may permit a spouse, partner or legal
>>representative to be a companion without this being a legal right.
>> Many people may be surpirsed by the fact that they do not have an
>>automatic legal right to be accompanied by a solicitor at a
>>disciplinary hearing, unless that solicitor falls within subsection 3
>>of section 10 of the Employment Relations Act 1999 [1] or is
>>permitted to act as a companion because this is stipulated in the
>>company's disciplinary policies and procedures.
>> Regards
>> S.P.
>> https://www.legislation.gov.uk/ukpga/1999/26/section/10

>No criticism of your excellent reply intended ! I seem to remember the
>NHS rules were quite generous but did exclude Solicitors etc acting in
>a professional legal capacity. Always thought this could appear
>unbalanced if the employer was fielding a member of their Legal or HR
>dept who just happened to be or have been a legal professional.

I'm quite sure lots of organisations have legal/HR departments staffed
by relative amateurs. In the public sector the salaries are often not
very attractive.

In the private sector I once helped someone in a dismissal case where
the employer's one-man legal team was an [ex-]solicitor who it turned
out later had managed to get himself struck off, a couple of years
previously. I wish I'd known before the event, because it could have
been an interesting thing to drop into the conversion!
--
Roland Perry

[Norman Wells]

Can you enlighten us please as to how that would have been relevant?

[Harry Bloomfield Esq]

After serious thinking Simon Parker wrote :

> However, and this is where it gets messy, the companion must be either a work
> colleague or a trade union representative certified or trained to act as a
> companion.

I was informed yesterday that they were a member of a union, so I have
suggested they contact the union, explain the situation and ask them to
accompany them. Trouble is, actually getting hold of someone in the
union to explain the situation, getting them to agree their support and
the hearing is on Friday, this coming Friday.

Would there be any mileage in asking the company to delay the hearing,
until the union has been contacted, made aware and they can then sort a
new date out?

[Roland Perry]

In message <ji2gh4...@mid.individual.net>, at 09:24:04 on Wed, 29
Jun 2022, Norman Wells <h...@unseen.ac.am> remarked:

Because the person in charge might have expelled them, on account of
being an *ex*solicitor.
--
Roland Perry

[RustyHinge]

That's what shop stewards are for (amongst other things).

--
Rusty Hinge
To err is human. To really foul things up requires a computer and the BOFH.

[Norman Wells]

But that's another matter entirely.

[Roland Perry]

In message <ji3569...@mid.individual.net>, at 15:16:41 on Wed, 29

Not at all. It would have made an "interesting" opening statement from
me. He was also half an hour late, which meant borrowed time already.
--
Roland Perry

[Norman Wells]

As a fearless opponent of ad hom attacks here, I'd have thought you
might recognise an obvious one and actually eschew making them.

I'd have thought you might also recognise irrelevance.

[Simon Parker]

On 29/06/2022 14:41, Harry Bloomfield Esq wrote:

As previously advised, the relevant legislation is the Employment
Relations Act 1999 and the Right to be Accompanied is covered in section
10. [1]

Working through section 10 in sequence:

You have stated that the worker has been invited by their employer to
attend a disciplinary or grievance hearing so, per subsection (1)(b), if
they haven't already done so, they should, as a matter of urgency,
inform their employer of their desire to be accompanied at the hearing.

Subsection (2A)(a) gives the worker the right to choose their own
companion providing the choice complies with subsection (3).

It is worth reading subsections (2B) and (2C) so that the worker is
clear what the companion can do and what they cannot do, but I do not
think it worth commenting on them here as they are self-explanatory.

As the worker is in a trade union, the companion they choose should be
within subsection (3)(a) or (3)(b).

Subsections (4) and (5) answer your question, so I will quote them in full:

<Begin Quote>

(4) If—
(a) a worker has a right under this section to be accompanied at a
hearing,
(b) his chosen companion will not be available at the time proposed
for the hearing by the employer, and
(c) the worker proposes an alternative time which satisfies
subsection (5),
the employer must postpone the hearing to the time proposed by the worker.

(5)An alternative time must—
(a) be reasonable, and
(b) fall before the end of the period of five working days beginning
with the first working day after the day proposed by the employer.

<End Quote>

TLDR: The worker needs to inform their employer of their wish to be
accompanied as a matter of urgency. They would be well served by
advising their employer at the same time that they are a member of trade
union <name> but that they have not yet been able to contact their union
to secure the services of a relevant companion and that it is therefore
possible and even likely that they will be unable to do this before
Friday so they wish to propose an alternative time once they've spoken
to the Union which they also need to do as a matter of urgency. If they
haven't managed to contact them by mid-afternoon Thursday, they could
suggest moving the meeting precisely 5 working days later. That buys
them the maximum time available but locks in that time and, if the
employer refuses to be more flexible than they legally need to be, they
are stuck with that time whether or not the Union have a companion
available.

They need to speak to the Union urgently, ensure they're covered and get
a date and time when a Union Rep will be able to act as their companion.
If they are unable to do this because they are at work, then a friend
or relative will need to do it in their stead but it needs doing and it
needs doing urgently.

Personally, I would serve the notices to the employer in writing,
preferably written by someone else to reduce stress on the worker and
to ensure nothing gets lost in translation. Given the timings, it would
be prudent to e-mail these notices to the employer.

[Roland Perry]

In message <ji3k52...@mid.individual.net>, at 19:32:02 on Wed, 29

Jun 2022, Norman Wells <h...@unseen.ac.am> remarked:
>On 29/06/2022 17:23, Roland Perry wrote:
>> In message <ji3569...@mid.individual.net>, at 15:16:41 on Wed, 29
>>Jun 2022, Norman Wells <h...@unseen.ac.am> remarked:
>>> On 29/06/2022 14:44, Roland Perry wrote:
>>>> In message <ji2gh4...@mid.individual.net>, at 09:24:04 on Wed,
>>>>29 Jun 2022, Norman Wells <h...@unseen.ac.am> remarked:
>>>>> On 29/06/2022 08:43, Roland Perry wrote:
>>>>>> In message <ji0pfg...@mid.individual.net>, at 17:44:32 on
>>>>>>Tue, 28  Jun 2022, Robert <rob...@invalid.invalid> remarked:
>>>>>>
>>>>>>>>  I hope I made clear in my previous response that, whilst it
>>>>>>>>cannot  be  insisted upon, an employer may permit a spouse,
>>>>>>>>partner or  legal representative to be a companion without this
>>>>>>>>

If that was an ad-hom attack, then you must be that struck-off
solicitor, and I claim my five pounds.

>I'd have thought you might also recognise irrelevance.

Is it irrelevant that someone passes themselves off as a solicitor?
--
Roland Perry

[Harry Bloomfield Esq]

Jeff used his keyboard to write :
> s10 (4) of the Act requires the employer to delay the hearing for up to 5
> days if a companion is not available on the original date.

She has now managed to involve the union, who are asking that the
hearing be rearranged to a later date to allow their attendence. She
has advised her manager of this, but the company are trying to pressure
her for the hearing to take place on Friday.

To be fair, she was originally saying until Wednesday (yesterday) that
she would be attending alone, simply because she didn't know any
better/ wasn't aware she coud get the help of the union. The manager
has tried to convince her that all that will happen is she will most
likely be reprimanded, with misconduct going on her record, no need to
involve the union.

Methinks they are trying to save themselves money, because until the
hearing she is suspended on full pay. The original letter from the
company clearly states she might be facing a charge of gross
misconduct, or misconduct.

I have suggested that she does exactly what the union advise her to do.

[Norman Wells]

Hardly. It would be utterly irrelevant to the question of unfair
dismissal of someone else. You would be kicking the man, not the ball,
and it would be of no effect whatsoever.

What earthly purpose do you think it would have served?

>> I'd have thought you might also recognise irrelevance.
>
> Is it irrelevant that someone passes themselves off as a solicitor?

To the question of whether someone else has been unfairly dismissed,
absolutely.

[Roland Perry]

In message <ji62c2...@mid.individual.net>, at 17:46:58 on Thu, 30

It speaks to the credibility of the employer if he fields such a person
to put their case.
--
Roland Perry

[Simon Parker]

I hope the Union were able to help her, both in getting the original
hearing moved and at the rescheduled hearing.

Regards

S.P.