All employees are entitled to be accompanied by a trade union official or a colleague at any disciplinary or grievance hearing. You do not have to recognise a union and your employee doesn't need to be a member of it either. You also do not have any say about the suitability of the representative. You should aim to give your employee reasonable notice of any hearing so they can prepare and find someone to act as a representative if they want one.
Responding to a request to postpone the hearing
Trade unions officials have many demands made on their time and will often ask to postpone meetings. Technically, you only have to agree to one postponement if the rescheduled hearing can take place within five working days of the original date. If it falls outside of this period, or the employee has made a previous request, they can't complain you have breached their rights to be accompanied. But, they may be able to argue that your refusal was unreasonable and their dismissal is unfair (they must have worked for you for two years' to bring a claim). You must therefore act reasonably and this might mean rescheduling the hearing to a date later than you would have liked.
Real life example
What is reasonable depends on the circumstances. In a recent case Talon Engineering Ltd v Smith, Mrs Smith was unfairly dismissed when her employer refused to postpone a disciplinary hearing for two weeks so she could be accompanied by her union rep. She had worked for the company for over 21 years and had an, otherwise, unblemished record. The Employment Appeals Tribunal made it clear that although the employer's refusal to postpone the hearing did not breach Mrs Smith's statutory right to be accompanied, this did not mean that her dismissal was fair. However, if you breach your employee's right to be accompanied, any subsequent dismissal is likely to be unfair.
The maximum compensation for breach of the right to be accompanied is limited to two weeks' pay currently capped at £1016.
The maximum compensation for unfair dismissal is capped at £83,682 (or 12 months’ salary if lower) and this poses a much greater financial risk. You are under an obligation to grant any request for a reasonable postponement for a maximum of five working days.
At Gepp Solicitors our Employment Law Team will be happy to assist you with any aspect of employment law. If you seek advice, please contact our Head of Department, Alexandra Dean on 01245 228141 or via email@example.com.
This is not legal advice; it is intended to provide information of general interest about current legal issues.