“An employee has requested that they have an interpreter at a disciplinary hearing because they do not understand English. Do I have to allow this?”
Under Section 10 of the Employment Relations Act 1999 (ERA 1999) an employee who is required or invited by an employer to attend a grievance or disciplinary hearing and makes a reasonable request to be accompanied has the right to be accompanied at that hearing.
The employee may choose the person they wish to accompany them provided that it is:-
- Another of the employer’s workers, or
- A trade union official who is employed by the trade union or certified in writing by the union as having experience or training in relation to acting as a worker’s companion at disciplinary or grievance hearings.
There is no right under Section 10 ERA 1999 to be accompanied by another type of person. For example, an employer is not required to allow a worker to be accompanied by:-
- A friend or a family member who does not work for the employer
- A legal representative
Consideration should also be given to:-
- The Equality and Human Rights Commission (EHRC) statutory Employment Code of Practice (https://www.equalityhumanrights.com/sites/default/files/employercode.pdf)
- The non-statutory ACAS guide to discipline and grievances at work (http://www.acas.org.uk/CHttpHandler.ashx?id=1043)
The EHRC statutory Employment Code of Practice gives the following examples:-
- As an example of an ‘auxiliary aid’, provision of a sign language interpreter or support worker for a disabled employee (para. 6.13)
- As an example of steps it might be reasonable for an employer to have to take (reasonable adjustments), provision of a reader or an interpreter (para. 6.33)
The ACAS guide to discipline and grievances at work recommends that employers should:-
- Consider the provision of an interpreter or facilitator if there are understanding or language difficulties (e.g. a friend of the employee, or a co-employee). This person may need to attend in addition to the companion though ideally one person should carry out both roles.
- Consider arranging for an interpreter where the employee has difficulty speaking English.
The ACAS guidance (unlike the ACAS Code of Practice) has no statutory authority. However, in the event of uncertainty regarding the Code of Practice, it may be followed by Tribunals.
Conclusion
It is important that employers carefully consider whether it is appropriate to provide an interpreter during disciplinary and grievance hearings to minimise risks around potential claims for disability discrimination and/or race discrimination.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.
