Maxine Orr discusses the rights involving employee representation at Tribunals. Employees and employers should seek legal advice when entering into serious disciplinary procedures.
An employee has the right under statute to be accompanied at a disciplinary or a grievance hearing and this right extends only an accredited trade union official or a fellow worker. A decision before the Employment Appeal Tribunal in England considered the issue of whether or not an employee has the right to be accompanied by a companion of his choice where he reasonably requests this.
The employee in this case – Mr Roberts, was employed as a Tanker Driver and was a Senior Shop Steward, the employer GB Oils Limited distributes oils to its customers. In July 2011, as a result of reports from customers, the employer found that deliveries to customers of white diesel oil or “DERV” had been contaminated by gas oil or “red diesel”. Investigations led them to believe that the driver responsible for the contamination was Mr Roberts. A disciplinary hearing was arranged to take place on 15 August 2011.The employee sought to exercise his right to be accompanied at a hearing and nominated for this purpose, a Mr Lean. Mr Lean was not an employee of the Respondent or a full-time officer of the Claimant’s union, Unite. He was what is known as “a lay official”. He was a regional chair of the South Eastern Region of Unite and branch secretary of a Unite branch of which many of the Respondent’s employees were members. The Respondent made it clear to the Claimant that Mr Lean would not be permitted to accompany him, Mr Lean being banned from meetings at any of the Respondent’s sites.
The Claimant accepted this and arranged to be accompanied by Matthew Draper, a more senior trade union representative than Mr Lean. The Claimant told the Tribunal that he was happy for Mr Draper to accompany him and that he had been his choice and the Tribunal found that in this respect there was no breach of the legislation. After the disciplinary the employee was dismissed however at the appeal the Claimant asked that Mr Lean accompany him despite knowing that he was not permitted to accompany him.
There were considerable difficulties in getting Mr Draper to attend and there were difficulties with availability of the appeal manager being available to attend the appeal.As a result the appeal proceeded in the absence of the Claimant after what the Tribunal described as “a protracted period of e-mail correspondence”. The Tribunal referred to previous case law which stated that the word “reasonable” in the legislation relates to the reasonableness of the request to be accompanied and not to the identity or characteristics of the person whom, pursuant to the right to request, the employee chooses.
The Tribunal at first instance held that there had been no breach of the right to be accompanied and the employee appealed. The Employment Appeal Tribunal stated that “Parliament has, in our view, legislated for the choice to be that of the worker, subject only to the safeguards set out as to the identity of the class of person who might be available to be a companion”. The EAT stated that “the choice is that of the employee once he has made a reasonable request”.
Employers should take advice in relation to these matters issues to avoid costly and time consuming litigation.