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'I am organising a disciplinary hearing for a staff member. He has told me that his union representative is not available on the date we have set and that he has not managed to find another to accompany him. He has asked to bring his solicitor as he wants the hearing to take place as soon as possible because the situation is causing him stress. Must we agree to this, or can we postpone the meeting until a union representative can accompany him?'
A spokesperson for the Universities and Colleges Employers Association says: "Your member of staff only has a statutory right to request to be accompanied by a trade union official or a fellow worker of his choice, provided there is no conflict of interest that could prejudice the hearing's outcome. As his representative is not available on the proposed date, he should be asked to suggest a reasonable alternative time and date within five days of the originally proposed date or find an alternative union representative or colleague. I suggest you consult your HR department regarding the institution's policy on stress: it may be possible to refer him to an occupational health adviser or staff welfare officer for advice, or there may be other support the institution can offer."
A University and College Union spokesperson says: "The Employment Relations Act 2004 states that workers have a right to be accompanied by a fellow worker or trade union official when required or invited by an employer to attend a disciplinary or grievance hearing.
"The employer has a duty to be 'reasonable' in setting a date that the employee and his designated companion can attend.
"Acas guidelines say that where possible, the employer should allow a trade union official to have a say in the date and time of a hearing. If the union official cannot attend on a proposed date, the worker may suggest an alternative time and date so long as it too is 'reasonable'. It would be a reasonable, advisable course of action to postpone the meeting until a union official can accompany the member of staff.
"Different universities have different rules about whether they allow solicitors to accompany employees to disciplinary and grievance hearings. If yours is a pre-1992 university, these rules should be in the university statutes or ordinances. In post-92 universities, a reference is likely to be found in the procedure for disciplinary hearings. There may also be a written reference in the recognition agreement between the university and any recognised trade unions. If you have prior agreements on the representation of staff members by a solicitor, you must honour these arrangements. If you do not have prior agreements, you are obliged to allow the solicitor to accompany the worker.
"However, you may wish to consider whether excluding the solicitor makes it more or less likely that the matter is likely to be resolved.
"There is also a question of whether it is in the long-term interest of the worker to be accompanied by a solicitor at this stage. A trade union official, whether full-time or based in your workplace, is likely to have a greater knowledge of your university and disciplinary procedures. The worker should note that if he is employing his own solicitor, under most union rules this would preclude later support by a union lawyer."
Gill Evans, project leader of the Higher Education Funding Council for England-funded Dispute Resolution Project ( www.staffs.ac.uk/idr ), says: "Your procedures should make clear the reasons for excluding the right to be accompanied by a solicitor and what discretion there is to vary this rule.
"Your overriding duty to the employee is not to exacerbate any stress, but you should ask for a medical certificate stating that the delay is affecting his health. If he can provide one, you should hold the hearing and allow him to bring a solicitor.
"He could be asked if he is willing to attend with a 'friend' instead, but no pressure should be applied to make him agree."
This advice panel includes the University and College Union, the Universities and Colleges Employers Association, Research Councils UK and Rachel Flecker, an academic who sits on Bristol University's contract research working party. Send questions to email@example.com