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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48210
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Have I been denied legal representation - S.10, ERA 1999 Right

Customer Question

Have I been denied legal representation - S.10, ERA 1999 Right to be accompanied to grievance and disciplinary hearing
Mon Invited to attend grievance and disciplinary hearing for the Friday
Tues Confirmed attendance in writing, want to fully engage in process, name JM as my Union representative to be present, will be pushing for a decision on Friday.
Wed Company notes my attendance and JM "will be accompanying you".
Thur (09:48) I inform company JM cannot make it. Request company "arrange for DC to attend instead as a work colleague as I have been specifically instructed not to contact any employee and have not done so" Thur (18:46) Company acknowledge DC "will be your your chosen representative for the grievance and disciplinary hearing. I will get in touch with him this afternoon & confirm weather he is willing and able to attend asap". Thurs (19:36) I then reply "can you please let me know asap whether or not DC can attend or not".
Friday Grievance & Disciplinary Hearing - At start of hearing, I ask "How are we doing with DC, did you manage to get hold off him, what's the situation on that" Reply: "No I said I would just rather listen to yourself today because there is so much information I need to look into / take on board... I don't want to get mixed up today". THIS IS RECORDED ON MY COVERT TAPE RECORDER.
At the end of the hearing (both rolled into one), I am advised that a decision will be made within the next 14 days for both matters. At no time was I informed that he made any attempt to get hold of DC, or if he was unavailable would like someone else present or would I be happy to continue by myself. Based on the above, should I be dismissed by the company, can I make a claim for unfair dismissal if I am dismissed (automatic unfair dismissal if this ground is proved...? ), is the evidence here?
Any case law authorities on point that I can look at...?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer:

2 and a half years

Ben Jones :

Sections 10 to 15 of the Employment Relations Act 1999 set out the right for employees to be accompanied by a trade union representative or a fellow worker at a disciplinary or grievance hearing and the protections afforded to those who exercise, or attempt to exercise, that right.

Where an employee's chosen companion is unavailable at the time proposed for the hearing, the employee has the right to suggest an alternative time which is not more than five working days later. If that time is reasonable the employer must rearrange the hearing for that time. In practice it would be advisable for an employee (or their companion) to give a range of available times, or for the parties to seek to agree a time.

In any event the employer should not have just proceeded without giving you the option of finding an alternative companion and they appear to have done this on purpose as they did not want anyone ‘distracting’ them on the day. So yes, this could amount to a refusal to allow you to be accompanied.

However, you cannot claim automatic unfair dismissal unless the actual reason for the dismissal was your attempt to try and be accompanied. It could easily be that you were denied the right to have a companion but the reasons for the dismissal were not because of your request to be accompanied, but for something completely different. This would not be an automatic unfair dismissal. It could still be an unfair dismissal if the employer had not carried out a proper investigation or be able to justify that dismissal was an appropriate penalty, but it is not linked to your right to be accompanied.

For a failure by the employer to allow you to be accompanied you can only make a claim in the tribunal to seek up to 2 weeks’ pay as compensation.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Okay.

Customer:

Just one more question please. Is the Tribunal likely to take a dim view on this in practice. How can I home this in to my advantage - no disciplinary decision has been made (manager wants to investigate and consider matters further) should I now therefore raise a grievance now, or hold back, and if dismissed, raise it in my ET1. There is past history between me and employer, me having recently won a discrimination case (in part) against them.

Customer:

After the last question is answered I am finished and ready to pay. How do I do this?

Customer:

Thanks

Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 3 years ago.
Hi, What the tribunal thinks would really depend on the circumstances of what happened and as mentioned as long as the decision to potentially dismiss you is not based on your right to request representation, then all they can do is offer a maximum of 2 weeks' pay as compensation. As no disciplinary action has yet been taken you are best advised to remind the employer that they breached the rules in the first meeting and ask them to hold the meeting again, this time allowing you to be represented as per your legal rights in this situation. If they refuse, that is when you can consider raising a grievance with them