What happens if the companion is not available at the time chosen for a disciplinary or grievance hearing?

Section 10 of the Employment Relations Act 1999, which sets out the statutory right to be accompanied, provides that if the companion is not available at the proposed hearing time and the worker suggests another time that is reasonable and falls within five working days of the original time, the hearing must be postponed until the new time proposed by the worker.

Employers should bear in mind that, while a refusal to postpone a meeting by more than five working days may not breach the employee's right to be accompanied, it may be taken into account when deciding whether or not any subsequent dismissal was fair. In Talon Engineering Ltd v Smith [2018] IRLR 1104 EAT, the Employment Appeal Tribunal held that the employer's refusal to postpone a disciplinary hearing for two weeks to allow the employee's union official to accompany them made their dismissal unfair.

If an employee requests a postponement due to the unavailability of their chosen companion, the employer should consider whether or not the postponement would be reasonable in all the circumstances.