Could my employee bring a clown to a meeting?

16/10/2019

When copy writer Josh Thompson was called to an ominous-sounding meeting in his New Zealand workplace, he guessed that the result would be redundancy. His firm’s HR department encouraged him to arrange a companion to support him through the process. 

To the delight of the Internet, Thompson chose to hire a clown to accompany him.

Thompson, who is a part-time stand-up comedian, was thrilled with the support he received for a mere NS$200 – although the clown had to be asked to pause his balloon animal creations at several points due to the screeching of plastic.

While Thompson chose humour to help him through a tough time, the regulations surrounding grievance and disciplinary hearings are seriously important to both employee and employer.

What are the rules here? ​

Employment laws in England and Wales aren’t the same as in New Zealand. In NZ, employees can bring either a representative or a ‘support person’ – a liberally worded regulation which Josh Thompson was able to use in an unusual manner.

Over here, employees going through grievance and disciplinary (including dismissal) meetings have the right to bring a companion, who can be one of the following:

  • a colleague, or
  • a trade union* representative, or
  • another official employed by a trade union*

Those are the categories of companion that an employee has the right to bring– but that’s not to say that an employer can’t be more liberal with their policies. If an employee requests a different kind of companion, you can grant their request if you find it reasonable.

In fact, your employee’s contract may stipulate a wider range of options, which is one of the reasons savvy employers periodically review their HR policies (see below).

It’s also important to note that an employee with disabilities must be given reasonable adjustments to accommodate those disabilities – this might include being able to bring a carer or similar to the meeting. 

What about redundancy meetings? ​

You’ll have noticed that the kind of meeting our New Zealand clown attended was a redundancy meeting – which doesn’t really seem to fit the label of grievance or disciplinary meeting.

In England and Wales, it’s a matter of legal debate: Should redundancy meetings or hearings should be treated the same way as disciplinary meetings?

It would appear that, for the purposes of the statutory right to be accompanied, “disciplinary hearings” do not include consultation meetings held during a redundancy exercise. Although an employer could, in theory, bar an employee from bringing a companion to a redundancy meeting, it is good practice for employers to allow employees to be accompanied at such meetings. Failure to do so may in some circumstances lead to a risk of the dismissal being unfair.

Best (and certainly safest) practice is to apply the above rules – as well as following other redundancy procedures.

There is no mandatory procedure laid down by statute in England and Wales for fairly dismissing an employee for redundancy. Employers should consider if there are contractual redundancy procedures, whether express or implied, that apply. Employers must follow a fair procedure involving individual consultation and make dismissal decisions that are fair and reasonable in the circumstances, following the principles of fairness established by case law in order to avoid claims for unfair dismissal.

What is a companion for? ​

What role does this companion play in a meeting? They may:

  • Present or sum up the employee’s case
  • Take notes through the meeting
  • Talk things over with the employee during the meeting   

Are you following best practice?

If you are a HR Manager or responsible for staff welfare, you should periodically check that your grievance and disciplinary procedures are compliant and, ideally, follow best practice.

Pinney Talfourd is one of the leading employment law firms in Essex and London. We understand that it is difficult and time consuming to keep up with the latest changes in employment law and would be happy to meet with you at your office to help. ​

* The employee does not have to be a member of a trade union to bring a union representative. They can invite an official from any trade union, whether you (as the employer) recognise it or not.This article was written by Alex Pearce, Senior Associate in the Employment Law Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of October 2019.

16/10/2019

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