Should a support person be allowed in a disciplinary meeting?

When Chloe Moffat was called into a surprise disciplinary meeting at the U.K. Treasury, she asked repeatedly for a close friend and colleague to join her for support. Her managers said no.

The 26-year-old personal assistant, who had worked at the department for almost three years, died by suicide the next morning. In August, a coroner found the Treasury had "materially contributed" to her death, according to The Guardian.

The meeting, though labelled informal, dealt with anonymous complaints that she had disclosed sensitive information, which she denied. Moffat was given no advance notice and was not told whether her job was at risk. The Treasury has since accepted the coroner's findings in full and issued interim guidance that lets staff bring a supporter to disciplinary meetings, requires proper notice and tells staff when dismissal is unlikely, the Guardian reported. A Treasury spokesperson told the paper an independent review found staff acted in good faith.

While the case is from the U.K., it’s a question that Canadian employers may face: if an employee asks to bring someone into a disciplinary or investigation meeting, does the employer have to say yes? The answer is rarely automatic — but saying no isn't straightforward either, say two employment lawyers speaking to Canadian HR Reporter.

No automatic right, with exceptions

For non-unionized employees in Ontario, there is generally no automatic right to bring a support person to a disciplinary or termination meeting, says Emily Compton, an associate at Miller Thomson in Waterloo, Ont.

“I’ll give you the classic lawyer answer: ‘It depends.’”

Justin Anisman, principal lawyer at Toronto's Anisman Law, says the issue could come up in situations involving human rights, health and safety or misconduct.

"The starting point is that there is no rule or there's no legislative right or common law right to a support person during a workplace investigation," he says. "It's not something that employees are automatically entitled to."

In unionized workplaces, the answer lies in the collective agreement. Compton cautions against importing the U.S. concept of Weingarten rights, a doctrine that gives unionized employees a right to a support person at certain disciplinary hearings. "That does not exist in a one-to-one comparison in Canada," she says.

Collective agreements commonly address representation in disciplinary and investigatory meetings, she says, "but the wording of the particular agreement determines when the right arises and the scope of that support person's role in the meeting."

Refusing representation where the agreement requires it can create a grievable breach, she adds.

Anisman says agreements vary too much to generalize, but it is "incredibly common" for employees, when questioned by management, to be entitled to a union representative— who "may or may not be different than a support person."

For non-union employers, the analysis doesn't end with the absence of a legal right. Both lawyers say employers need to check the employment contract and their own workplace policies.

Human rights and mental health

The Ontario Human Rights Code applies in both unionized and non-unionized workplaces, and this is an area where a support person may become mandatory.

Compton points to the Ontario Human Rights Commission's position that employers have a legal duty to accommodate disability-related needs, and that accommodation must be individualized. A clear example, she says, is an employee who uses sign language and needs an interpreter to communicate in the meeting.

Mental health and addictions can also come into play. The commission has said the nature of a mental health disability may mean a person can't expressly articulate a request for help, Compton says.

"It's not necessarily the case that someone comes and specifically says, ‘Pursuant to the Code, I am requesting accommodation.’"

Anisman offers the example of an employee with an anxiety disorder whose medical professional says questioning will cause acute distress that a support person could ease.

“Then, employers have an obligation under the Human Rights Code to accommodate disability up to the point of undue hardship, and allowing a support person into an interview wouldn't meet, in my opinion, the threshold of undue hardship."

But a mental health issue doesn't automatically entitle an employee to the particular support person they want, says Compton: "An employee is entitled to reasonable accommodation of a disability-related need, not necessarily whatever accommodation they prefer."

 What employers can't do is wave the request away, she says. "The employer has to genuinely engage with the request rather than simply saying, ‘Our policy doesn't permit third parties.’"

Risk management, performance management

Even where it isn't required, Anisman says allowing a support person is becoming more common when one is requested.

"That's not because there's some law that requires it or the court judges have mandated that it be permitted, at least not yet," he says. Instead, lawyers and business owners are deciding it is "more helpful and fair and less risky."

He regularly sees investigations where an employer has prejudged an employee and is "just doing the sham investigation to get to the point they want to fire them." Those are often challenged for procedural unfairness and being done in a manner that breaches the employer’s obligation to properly investigate.

Agreeing to a support person, even when it isn't required, helps an employer show it acted fairly, says Anisman: "It's just about risk management from an employer perspective.”

“Allowing a support person, I think, would assist with that effort to ensure that an investigation is done fairly and done appropriately and that… the correct, honest and truthful information is obtained in the course of their investigation.”

It’s also important to note that employers are entitled to manage performance and misconduct, says Compton.

"Good psychological safety and good performance management aren't opposites. Employers can hold employees accountable while still treating them with dignity,” she says.

“The goal should be to make the process fair, respectful, accessible — while still preserving the employer's ability to manage the workplace.”

 And refusing a support person is "not itself automatically bad faith,” says Compton: “Psychological safety doesn't mean just protecting employees from difficult conversations.”

Should employers offer a support person?

Given the increased focus on mental health supports in the workplace, should employers automatically suggest the employee have a support person ahead of a difficult meeting? Anisman generally wouldn't advise such a move. For an ordinary employee with a good command of the language, "I just think it's an added layer that's unnecessary," he says.

Instead, Anisman would focus on the elements of a fair process: telling the employee there is an investigation, what it's about and which key documents to review.

He makes an exception where a support person, for example, could help a worker with limited education or language skills, where cultural norms or power imbalances might lead them to say what they think the employer wants to hear.

"In that case, you might say, ‘Hey, is there somebody you want there with you just to make sure you understand?’"

Who can offer support

Anisman doesn't see a problem with who the support person is — family, a friend or a colleague — as long as they understand their role is emotional and moral support. The exception is a colleague who is a witness, a complainant or otherwise part of the investigation.

“So long as they understand their role to be emotional and moral support for the person being interviewed and not… a gatekeeper of the questions or an active participant in the investigation.”

However, there’s also a confidentiality consideration, says Compton, because the meeting could involve information about other employees, harassment complainants or witnesses, customers or proprietary business matters.

“Employers need to think very carefully about whether that is appropriate because it could infect the integrity of the investigation process."

An employee's own lawyer is a different matter. Anisman says that is probably a situation where an employer shouldn't allow attendance, in part because the lawyer may want to interfere, not provide emotional or moral support. And they could end up as a witness if there is later a dispute over what was said.

Lawyers also tend to treat these interviews like an examination for discovery, he says: "That's not really the purpose of a workplace investigation. It's supposed to be informal information gathering."

Outlining support person’s role

When a support person does attend, both lawyers say the key is defining their role upfront. Compton says employers should start by asking why the employee wants the person there.

"The person is there to support the employee and not there to become a participant who's answering questions, advocates the case, or is steering the meeting," she says. "The employer should still be able to manage the process and communicate directly with the employee."

Anisman says the main risk is a support person who acts as an advocate or a barrier — signalling to the employee not to answer a question, or reminding them of what was discussed beforehand. Training investigators to handle that is important, he says.

"If I was doing a workplace investigation and a lawyer showed up and started interfering, then I would end the interview and I would say, ‘We're going to continue this another time when you're not interfering.’"

Done properly, allowing a support person doesn't mean giving up control, says Compton.

"A support person could help an employee navigate what could be a very stressful conversation while the employer is retaining their ability to ask questions, deliver its message, and manage processes."

Can the meeting be recorded?

A support person who wants to record the meeting raises a separate issue. Anisman says recordings are generally allowed as long as the person recording is a participant in the conversation, and employees don't have to tell the other side. "In fact, I encourage my clients to," he says.

Could an employer ban such a move? A general workplace policy against recording others is reasonable and may hold up, he says, but a ban aimed at one meeting is another story. "I think courts would be a lot less lenient in upholding a policy such as that."

And firing an employee for insubordination if they record against instructions could invite a reprisal argument, he adds. "It’s a difficult line to make. I think it's risky, and I think it's hard to say what a best practice is."

Where client or financial information is discussed, Anisman says employees generally have a duty of confidence, but recording alone isn't necessarily a breach; liability arises if the information is disseminated.

Compton urges employers considering restrictions around recordings to think seriously about confidentiality, the security of the investigation process and why the support person is being requested in the first place.