Lesson 1, Topic 1
In Progress

3.14 The fact that the employee’s case is sufficiently and effectively presented is demonstrated.

ryanrori January 12, 2021

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Who Can Accompany the Employee

The law says that the employee can be accompanied by a companion who is either:

· A full time officer of a trade union

· A trade union representative – usually but not necessarily from the workplace

· A colleague from the same workplace

What can the companion do at the hearing?

Again, the law is clear on this. The companion may make an opening address on the employees behalf at the beginning of the hearing. After that they cannot address the hearing again unless the employer agrees. However you may confer at any time, and they can take detailed notes of the hearing which will be very useful if the case ever goes to appeal or ends up in an Employment Tribunal or other court.

But this is a legal minimum. Where unions have negotiated a procedure it is likely that the companion will be free to effectively represent the employee and be able to speak on his/her behalf at any time and ask questions of any witnesses.

Before a hearing you should try and find out what your companion will be allowed to do and say. You should certainly take sufficient time to really go through your case and work out what you and your companion will say.

If your companion is not free at the time when the meeting is organised, you can ask for a postponement of up to 5 working days and ask for a different time within those 5 days when your companion is free. The alternative time must be a reasonable one.

What happens if you are not allowed to bring a companion?

If your employer refuses to let you bring a companion, you should not attend a formal hearing, Instead you should put in writing that you will not attend until you are allowed to bring a companion with you as is your right under the Employment Relations Act 1999.

If you have a meeting with your employer that you think is entirely informal but he or she then tries to give you a formal warning or impose some other punishment, then you should politely ask for the meeting to stop at that point and then be reconvened at a time when you can bring a companion.

If they still go ahead, you should write after the meeting and ask for it to be held again with your chosen companion present. You should also write down as full a note as possible describing what happened at the meeting. But don’t forget you can be dismissed on the spot without any hearing for gross misconduct (see above).

If your employer refuses to allow you to bring a companion you can complain to an Employment Tribunal.

If they sack you because you tried to take a companion into the hearing, you can claim unfair dismissal at an Employment Tribunal. Unlike some unfair dismissal claims how long you have worked for your employer does not matter.

If you are sacked for other reasons, but you were not allowed to take a companion into the hearing then you are likely to have a strong case at a Tribunal, and you may well get extra compensation.

If you lose out in some other way – for example by losing performance related pay – you can make a claim to an Employment Tribunal.

Any complaint to an Employment Tribunal must be made within three calendar months of the day on which your employer refused to allow you to be accompanied or from the date of dismissal if you are dismissed.

If you are still employed by that employer, the tribunal can order the employer to hold the hearing again and allow you to be accompanied. If you have been dismissed you will be entitled to compensation for the breach of your right to be accompanied as well as compensation for the dismissal if it is found to be unfair. This is a complex legal area and you should seek advice from your union or another advice agency.