One aspect of what it means to be a fair employer is allowing your employees to have support and advice during disciplinary meetings.
But depending on the nature of the person who your employee has brought along with them, their presence can either:
- help the meeting go smoothly by supporting the employee and engaging with you constructively; or
- turn what is possibly already a tense meeting into an even more difficult engagement.
If you are faced with a support person who you think is disrupting the flow of the meeting, what are you allowed to do? Can you tell the support person to be quiet?
In fact, are they allowed to speak at all?
SUPPORT PERSON v REPRESENTATIVE
Before moving on, let’s be clear who we are talking about.
Two different terms are given to someone who attends a disciplinary meeting with an employee: “support person” and “representative”.
There are no hard and fast legal distinctions between these two roles, but in general:
- A support person is someone who comes along to provide moral and emotional support. They are typically a friend, colleague or family member. They are not there to give legal advice as such.
- By contrast, a representative is someone who is usually hired by your employee to give them specific advice. They may be lawyers, non-lawyer advocates or union reps. Under the Employment Relations Act an employee is entitled to appoint anyone they wish to be their representative.
The law does not make any distinction between the rights of those who appear as support persons versus representatives. In either case, they may be entitled to take the actions set out below.
WHAT ARE THEY ALLOWED TO DO?
By being present at the meeting, a support person or representative is implicitly let in on the discussion. They should be permitted to take notes and hear what is being said.
That is passive behaviour, though. What if they want to take a more active role in the meeting?
You might find yourself objecting to a support person or representative speaking up because you want to hear from the employee personally. You want the employee to give you a straight answer.
But the nature of a representative is to “represent“, which is an implicit indication that they are permitted to speak on the employee’s behalf.
That is only fair, since employees can often find disciplinary meetings very stressful, and will struggle to express their views. A representative, who is likely more dispassionate and unaffected by nerves, can translate the employee’s thoughts into words. That is, they may be able to promote the employee’s interests in a way that the employee is rendered incapable of doing themselves.
The Employment Court has summarised the extent of a representative’s involvement this way:
“A representative of a person at a disciplinary meeting is not a mute observer … Such a person must be able to speak on behalf of an employee, to intervene in the process, and to give explanations where necessary.”
In other words, if you prevent a representative from speaking up and speaking for an employee during a disciplinary meeting, you may be found to have failed to give them a real opportunity to have the support and representation necessary to ensure you have conducted a fair process.
Of course, your concern is to hear from the employee. That is the point of the meeting.
But if the employee wants to speak through their support person or representative, then that is their choice.
The consequence is that you must be entitled to take what the representative says as part of the employee’s response.
In some cases, you may be concerned about what the support person or representative is saying on the employee’s behalf. You may think what they are contributing is unhelpful or even damaging to the employee’s position.
In that event, tell the employee that by hearing from their support person, you will treat whatever that person has to say as the employee’s own words. Offer to adjourn the meeting if necessary for the employee and their representative to consider that. You may find this prompts the employee to correct or reconsider what has been said on their behalf.
You are obliged to invite your employees to bring a support person or representative to attend a disciplinary meeting with them.
And if that invitation is to have any substance, you must not tell the support person or representative to be quiet, or prevent them from speaking on the employee’s behalf. If you do so, you risk reaching an unjustified decision at the end of the disciplinary process.
So let that support person speak. If necessary, make the employee aware that you will consider that person as their spokesperson so that, if they do not agree with what their support person is saying, they will be prompted to let you know.