Disciplinary hearing

A. The right to be accompanied to a disciplinary or grievance hearing by a union rep or workplace companion derives from section 10 of the Employment Relations Act 1999. This specifies that it is for the worker to decide who they want to represent them.

If their chosen representative is unavailable, the employer has a statutory obligation to postpone the hearing to a time that is reasonable and is within a period of five days. Unfortunately, the employer is not legally obliged to delay the hearing beyond the five days, although many will do so if asked. 


If, however, the disciplinary hearing could lead to dismissal, a case decided earlier this year suggests that a refusal to delay to allow the employee’s union officer to attend could be unreasonable, even though it was not a breach of the statutory right. (Talon Engineering Ltd v Smith EAT 0236/17). 


In that case, the employer refused to delay the hearing by nearly two weeks and proceeded to dismiss the employee in her absence. There had already been some delay in the process, and the denial of a hearing by refusing to postpone it so her union rep could attend was unreasonable and made the dismissal unfair as a result.