Is an employee entitled to be accompanied at a meeting to discuss poor performance?

Going through a capability procedure (often referred to as a poor performance procedure) can be stressful for employees, so they may be entitled to support via a companion during a meeting to enable them to convey their point of view. Our Employment Law Team here reviews if, as an employer, you are obligated to allow employees to be accompanied during a poor performance meeting.

If you are concerned about an employee’s performance, you should follow your formal capability procedure detailed in your staff handbook. This process often takes place over a prolonged period of time as there are several stages. The process begins when you conduct an informal meeting to discuss poor performance. If you believe that after a sufficient period of time matters have not improved, you can begin a formal capability procedure.

It is at this formal stage that the employee has a statutory right to be accompanied by a workplace companion or a trade union representative.  They do not have this right at the initial informal meeting. This is because further action may be required in accordance with your capability procedure such as a formal written warning, dismissal or some other penalty. 

The position differs slightly if you know or suspect that an employee has a disability within the Equality Act 2010. Acas advises that you should give an employee who is or may be disabled the opportunity to bring a companion along, regardless of their statutory right to do so. The guidance goes on to suggest that you should allow a disabled employee to bring a friend or family member to accompany them as this may count as a reasonable adjustment.

You may choose to consider granting the right to be accompanied even when there is no statutory right to do so. Whilst you don’t have to allow this, it helps in showing you conducted a fair process and tried to provide the employee with additional support. Whether this is reasonable will depend on the individual circumstances of each case.   

If you are unsure about how to conduct a fair capability procedure or if an employee has the right to be accompanied you can contact the Employment team on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.