Gross misconduct meeting and bringing a friend

What would you do if you were inviting an employee to a gross misconduct meeting and they asked for a friend to come along to help?

That’s exactly the situation a nursery manager found themselves in recently.

The facts

Claire was a cleaner employed by the nursery to carry out her work after the nursery had closed for the evening. The nursery had cause to believe that Claire was not working all of the hours she stated on her timesheet.  Therefore, they invited her to attend a disciplinary hearing following an investigation. In the invite letter, Claire was advised that if the allegation was found to be proven, this would constitute gross misconduct. She was also advised of her right to be accompanied.

Prior to the hearing Claire e-mailed the Nursery Manager and asked if she could bring a friend along as she requires “help in the meeting”. The Manager doesn’t know whether to refuse the request as she is aware that the right to be accompanied only extends to a work colleague or trade union representative, so she called the legal advice helpline to clarify.

During the conversation, Claire’s request is mentioned and the Advisor makes some further enquiries. It came to light that the nursery knew that Claire had hearing difficulties; so much so that she relied heavily on lip-reading. However, due to the nature of Claire’s work, this had not been an issue in the past. As such the Manager was advised to reply to Claire’s e-mail and confirm that her request was being given consideration and asking for clarification as to what “help” she required.

Claire responded to the e-mail stating that as she had been accused of gross misconduct, she believed her job was at stake and she was worried about having to rely on lip-reading, particularly as she may also need to look at documents and would find the situation stressful. She indicated that she wanted to bring a friend with her who could sign to her and therefore ensure that she didn’t miss anything and fully understood everything.

Potential for claim

The Nursery Manager contacted the Employment Advice Service (EAS) again and relayed the reply. The Advisor identified that this request could well be considered a reasonable adjustment as it would appear that Claire could potentially be a disabled person under the Equality Act 2010. As the allegations didn’t raise any confidentiality issues or concerns of damage to the nursery’s reputation it was advised that the safest course of action would be to allow the request.

By contacting the EAS the requirement to make a reasonable adjustment was identified and the disciplinary process adapted appropriately. Had the Nursery Manager simply refused the request then the nursery would likely have faced claims for disability discrimination claim for failure to make reasonable adjustments and potentially an unfair dismissal claim arising from the same.

jackie hyde