When the time comes that you need to have a difficult conversation with an employee, particularly in relation to matters such as poor performance, misconduct, potential dismissal or redundancy, it's important that the employee be provided procedural fairness – which includes allowing them to bring a support person to relevant meetings if they choose to do so.
While it is not necessarily a legal requirement of the employer to take the step of inviting the employee to bring a support person along to relevant discussions, it's considered best practice to do so. It's particularly important where there's a possibility that the discussion will involve termination of the person's employment, whatever the reason.
What is the role of a support person?
Basically, the role of the support person is just that – to support the employee. They are an observer to proceedings – their role is not to ask questions, advocate or argue on behalf of the employee, or answer for them. That said, they can offer advice or guidance to the employee, generally observe the meeting and take notes.
Who can the support person be?
The employee may choose to bring, for example, a union representative, a colleague or a friend or family member as a support person. Whilst the support person may be a lawyer, they are not permitted to act in a professional capacity – which means they are there simply to support (as anyone else would do), not to advocate for or represent the employee.
The employee should advise the business in advance of the meeting if they intend to bring a support person, and if so, who their support person will be. In some instances (which must not be unreasonable), the business may be entitled to suggest an alternative support person. For example, if the allegations concern workplace bullying and the support person is also involved in the investigation, there may be a conflict of interest. In this case, the business may suggest or request that someone else be the support person so that the investigation is not jeopardised or prejudiced.
What happens during the meeting?
It's important at the start of the meeting that the employer reinforces the role of the support person (both what it is, and what it isn't), so that everyone is clear. If the support person forgets or disregards this during the meeting, then the employer should stop the meeting and remind the employee and the support person of their role before continuing. It's also important that you remind the support person (as well as the employee) of the confidential nature of the meeting, and of their requirement to respect and abide by this requirement for confidentiality.
If need be, allow the employee and the support person some private time for discussion during the meeting – this can help calm the situation down if it's getting heated, as well as allow the support person some time to provide the employee with some guidance or advice.
We can help!
Employers need support in difficult conversations, too, and we can attend meetings with you to support you through the discussion and provide you with advice and guidance also. Let us know if and how we can help.