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Who Will Be At Your Next Disciplinary Hearing?

View profile for Joan Casson
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Employment lawyers are often asked who an employee can bring with them to a disciplinary hearing.  Most employers limit an employee’s companion to a work colleague or trade union official, which is consistent with the statute giving employees the right to be accompanied at disciplinary hearings.  That law does not require employers to allow employees to be accompanied at investigation meetings.

There are circumstances, however, where employees might be entitled to bring someone else to disciplinary hearings or even investigation meetings.  For example, in order to avoid discrimination claims, employers might need to expand the list of possible companions for disabled employees or employees whose  first language is not English if another work colleague or union official would not be able to adequately assist the employee.  Also, in very limited cases employers may be required to permit lawyers to attend with employees where the hearing could result in the employee being banned from carrying out their profession.

There has been yet another expansion of this right.  In a recent case, neither the law nor the employee’s contract of employment permitted the employee to bring with him to an investigation meeting a person who was not a work colleague or trade union official.  Despite that fact, the court considered that the employer would breach the term of trust and confidence implied into all contracts of employment if this other companion was not allowed to attend with the employee in the somewhat unique circumstances of the case.  The special circumstances which helped sway this decision included the fact that the allegations against the employee were very serious, the employer had allowed the companion to act for the employee at other stages in the process and the companion was employed by an organisation which acted very much like a union.

Although this recent decision is currently limited to special circumstances which would not arise in very many employment settings, it does act as a reminder that there are cases when employers should not just limit companions to work colleagues or trade union officials.  Employers should at least consider whether it would be appropriate to allow someone else to accompany an employee at different stages of the disciplinary process.