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UK Employment Relations Act 1999 and the ACAS Code of Practice on Discipline and Grievance Procedures
The UK Employment Relations Act 1999 came into force on 4 September 2000. One section or the ERA (1999) provides a statutory right for a worker to be accompanied at grievance and disciplinary meetings. The right is one to be accompanied, not represented, therefore the companion, as the Act describes this person, is limited to addressing the hearing and conferring with the worker, but not asking or answering questions on the worker's behalf.
A wider view is taken by the ACAS Code of Practice on Discipline and Grievance Procedures. The ACAS Code of Practice accompanies the Employment Relations Act and although not legally binding, it recommends that the companion takes a full part in proceedings. Given that traumatisation prevents a bullied target from articulating their case, this is essential. Any reasonable employer will comply with the ACAS Codes of Practice; failure to follow these guidelines will be taken into account at employment tribunal.
In many bullying cases reported to the UK National Workplace Bullying Advice Line, the worker has been denied the right to be accompanied, but this may now be in breach of employment law. A worker has the right to be accompanied to any meeting of a disciplinary or grievance nature, ie any "hearing which concerns the performance of a duty by an employer in relation to a worker" and any meeting or hearing at which the employer may impose a formal warning or take other action against the employee, which may include dismissal. The right to be accompanied includes any appeal hearing at which a warning or action may be confirmed.
The right to be accompanied is at present limited to a union official or work colleague. As many cases reported to the UK National Workplace Bullying Advice Line involve a worker whose union has refused to support them, and a climate of fear where no fellow worker is willing to put their head on the block, the Act has severe limitations when it comes to dealing with bullying at work.
The right to be accompanied by a trade union official includes the right to be accompanied by a representative of a union other than the union recognised by the employer. However, it may require case law to confirm this aspect.
The worker has the right to ask for a postponement of the meeting due to the unavailability of the union official. The ACAS code suggests that the meeting should be arranged at a time and a place convenient to all parties.
If the bully, or the employer, denies you the right to be accompanied to any meeting involving your alleged underperformance or any other aspect of your performance highlighted by the bully, perhaps claiming "this is not a disciplinary meeting", but then imposes any form of disciplinary action, the employer will be in breach of the Employment Relations Act (1999).
Weingarten Rules for USA employees
Under the Supreme Court's Weingarten decision, when an investigatory interview occurs, the following rules apply:
Rule 1: The employee must make clear request for union representation before or during the interview. The employee cannot be punished for making this request.
Rule 2: After the employee makes the request, the employer must choose from among three options. The employer must either:
Grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; or
Deny the request and end the interview immediately; or
Give the employee a choice of (1) having the interview without representation or (2) ending the interview.
Rule 3: If the employer denies the request for union representation and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.
The rights guaranteed by this Supreme Court decision are in effect only under a union-negotiated contract.
See Zimmerman for case law on retaliation
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