Introduction to this document
Workplace companion confidentiality agreement
Where a worker requests to be accompanied to a disciplinary or grievance hearing, use our workplace companion confidentiality agreement. It sets out the extent of the companion’s role and your requirements for confidentiality.
A worker has a statutory right to be accompanied to a disciplinary, grievance or appeal hearing by either a work colleague, trade union representative or an official employed by a trade union (whether they’re a member of the trade union or not). To exercise the statutory right, workers must make a reasonable request. What’s reasonable will depend on the circumstances but it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing (such as a co-accused). In certain circumstances, such as where the workplace is small and the choice of companion is limited, you may decide to go further than the statutory right and allow the worker to be accompanied by a relative or friend, although it’s unlikely you’ll go as far as agreeing their solicitor can come. So, that’s the right but, once at the hearing, what can the companion do? Our Workplace Companion Confidentiality Agreement firstly sets out the extent of the companion’s role by asking them to acknowledge what they are, and are not, permitted to do. In a nutshell, they’re permitted to address the hearing to put and sum up the worker’s case, respond on behalf of the worker to any views expressed at the hearing and confer with the worker during the hearing. However, they’re not permitted to answer questions on behalf of the worker, address the hearing if the worker doesn’t want them to or prevent you from explaining the company’s case. By asking the worker to sign to agree this in advance, there should be no misunderstandings about the role they can play.
The second part of our document is a confidentiality undertaking. This is aimed at ensuring the companion doesn’t go shooting their mouth off to other work colleagues or outside third parties about what’s going on or trying to discuss it with, say, witnesses involved. Disciplinary proceedings and grievances are private matters and should be treated on a strictly confidential basis. Not only that, any unauthorised breach of confidentiality could jeopardise the proceedings. Obviously, it’s acceptable for the companion to discuss the case with the employee who is being disciplined or raised the grievance. The document also optionally states that, where the companion is an employee, breach of the agreement will be viewed as potential gross misconduct, i.e. it will result in disciplinary proceedings being commenced against them which may result in dismissal. Where the companion is an outside third party, the optional paragraph states that breach of the agreement could result in civil proceedings being issued against them for breach of contract and/or confidentiality. Unfortunately though, if the companion refuses to sign the document, you can’t prevent them from acting as a companion where this would contravene the worker’s statutory right (although that still doesn’t stop you disciplining them if they go on to commit a serious breach of confidentiality). However, you should be able to put your foot down where you have gone further than the statutory right and allowed the worker to be accompanied by an outside third party.
01 Oct 2012