Handling a disciplinary meeting can feel daunting for employers, particularly when an employee says they are bringing a union representative. Whether you run a small business with no recognised trade union, or a larger organisation with formal collective agreements, it’s essential to understand your legal obligations around union representation.
In this guide, we’ll walk through what the law says, answer common employer questions, and explain what a union rep can and cannot do in a disciplinary meeting.
The Legal Right to be Accompanied
The starting point is the statutory right to be accompanied under the Employment Relations Act 1999. Section 10(1) of the Act states, “Where a worker has a right to attend a disciplinary or grievance hearing and reasonably requests to be accompanied at the hearing, the employer must permit the worker to be accompanied at the hearing”.
This applies to disciplinary hearings that could result in:
- A formal warning
- Some other disciplinary action
- Dismissal
It does not normally apply to informal meetings, investigation meetings (although allowing accompaniment can be good practice), or day to day management discussions. Your company policies and procedures may also allow employees the right to have representation at other meetings beyond the statutory right so make sure that you check these documents.
The statutory right is also reinforced in the ACAS Code of Practice on Disciplinary and Grievance Procedures, which states, “Workers have a statutory right to be accompanied at a disciplinary or grievance hearing”.
We Don’t Have a Recognised Trade Union – is a Rep Still Allowed to Attend?
This is one of the most common questions employers ask.
Yes. Even if you do not recognise a trade union, an employee still has the statutory right to be accompanied by:
- A fellow worker
- A trade union official
- A trade union representative who has been certified as competent by their union
There is no requirement for the union to be formally recognised by the employer.
So if an employee is a member of a trade union and requests a union rep, you cannot refuse simply because you have no collective agreement in place.
How do I Know They are Actually a Union Rep?
Employers are entitled to reasonable reassurance.
The legislation refers to:
- A “trade union official”
- Or a “trade union representative who has been certified by the union as having experience of, or having received training in, acting as a worker’s companion.”
You are entitled to ask for confirmation that the person attending is an official employed by the union, or a certified representative of that union. In practice, this confirmation may be evidenced by a union ID card, a letter or email from the union or confirmation of certification. However, be careful not to create unnecessary barriers. The law does not allow employers to impose excessive procedural hurdles to prevent union representation. If in doubt, it is usually sensible to ask for written confirmation in advance of the disciplinary hearing.
What is the Role of the Union Representative?
A union representative’s role is supportive, not adversarial.
Under Section 10(2) of the Employment Relations Act 1999, the companion may, “address the hearing (but not answer questions on behalf of the worker), confer with the worker during the hearing and sum up the worker’s case”. This means the union rep can present the employee’s case, respond to general points raised during the hearing, sum up arguments, ask questions and confer privately with the employee.
However, they cannot answer questions on the employee’s behalf, prevent the employer from explaining its case or behave in a disruptive or aggressive manner.
The employee must still personally respond to allegations. The disciplinary process remains between the employer and the employee.
What if the Rep is Disruptive?
Occasionally, employers worry that a union representative will take over the meeting or make it confrontational. In reality that is uncommon but if the rep behaves unreasonably, for example by repeatedly interrupting or refusing to allow the employee or employer to speak you can pause the meeting, remind everyone of the purpose and structure and reiterate the statutory role of the companion.
In extreme cases, you may adjourn or ask the rep to leave if conduct becomes totally unacceptable. However, any action should be proportionate and well documented. Overreacting could expose you to claims that you denied the employee their statutory right to accompaniment.
Does the Right Apply to Investigation Meetings?
Strictly speaking, the statutory right to union representation applies to disciplinary and grievance hearings, not investigation meetings. However, some employers choose to allow accompaniment at the investigation stage as a matter of fairness and consistency. This can be particularly helpful in complex or sensitive disciplinary cases. If you decide not to allow representation at investigation meetings, make sure this is clearly set out in your disciplinary procedure.
Can we Refuse a Particular Union Representative?
The employee has the right to choose their companion, provided they fall within the legal categories.
You can refuse only if:
- The individual is not a fellow worker or trade union official/representative
- The person’s attendance would cause unreasonable delay (for example, they are unavailable for a long period)
If the chosen rep is unavailable at the proposed time, the employee can suggest an alternative time within five working days.
Refusing without good reason could lead to a Tribunal claim. Compensation for breach of the right to be accompanied can be up to two weeks’ pay.
Practical Steps for Employers
Managing union representation during a disciplinary meeting does not need to be difficult. Good preparation makes a significant difference.
Ensure your disciplinary procedure:
- Clearly references the statutory right to be accompanied
- Explains who may attend
- Sets out expectations of behaviour
During the meeting:
- Introduce all parties and clarify roles
- Confirm the companion’s status
- Stick to your evidence and process
- Keep accurate notes
After the meeting:
- Confirm the outcome in writing
- Include details of any right of appeal
Remember, the presence of a union rep does not change your responsibility to carry out a fair and reasonable disciplinary process.
Handled properly, the involvement of a union representative should not undermine your disciplinary process. In fact, when managed professionally, it can reinforce fairness and transparency both of which are central to good HR practice.
Do you have any questions about today’s blog, need help in becoming legally compliant with contracts/policies or can we support you in taking away any people pains to give you peace of mind?
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Why not also check out last weeks blog What to do When You Receive a Tribunal Claim?
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