Who Can Be A Support Person? A Guide For New Zealand Employers

When an employee is facing a disciplinary meeting, performance meeting, or another serious workplace discussion, one of the first things they may ask is ‘can I bring a support person?’  For many employers, particularly small businesses, it's not always clear what the rules are. Do you have to allow it? Who can they bring? What is the support person actually allowed to do?

Getting this wrong can make an otherwise fair process become procedurally unfair, increasing the risk of a personal grievance.

What is a support person?

A support person is someone chosen by the employee to attend a workplace meeting with them to provide emotional support, practical assistance, and help them participate in the process.

The purpose of a support person is not to argue the employee's case or make decisions for them. Their role is to help ensure the employee is able to understand what is happening and respond appropriately.

Having a support person is an important part of ensuring a fair and reasonable process under New Zealand employment law.

When should you allow a support person?

Whenever a meeting could have consequences for an employee's employment, they should generally be given the opportunity to bring a support person.  This commonly includes:

• Disciplinary meetings

• Serious misconduct meetings

• Performance management meetings where formal action may result

• Meetings considering a written warning or final warning

• Meetings considering dismissal

• Medical incapacity meetings

• Some restructuring or redundancy consultation meetings

• Any formal investigation interview where the employee may need to respond to allegations

Although not every workplace meeting requires a support person, if the outcome could affect an employee's job, it is good practice to offer them the opportunity.

A simple sentence in your meeting invitation is usually enough:

"You are entitled to bring a support person and/or representative of your choice to this meeting."

Giving this option demonstrates good faith and helps protect the integrity of your process.

Is allowing a support person a legal requirement?

The Employment Relations Act 2000 does not specifically say every employee must have a support person.  However, employers are required to act in good faith and follow a process that is both fair and reasonable.

The Employment Relations Authority and the Employment Court regularly consider whether an employee was given a genuine opportunity to seek support before important meetings.

Refusing an employee's reasonable request for a support person, or insisting the meeting proceed immediately without giving them time to arrange one, may make the process unfair.

Do I have to allow the meeting to be delayed?

If an employee asks for a short delay so their chosen support person can attend, it is usually reasonable to agree.  For example if their support person is unavailable until tomorrow, they need a day or two to arrange someone, or they need to travel to the meeting.  On the other hand, an employer does not have to accept repeated or unnecessary delays if they appear designed simply to avoid the process.  As with most employment issues, reasonableness is the key.

Who can be a support person?

In most cases, the employee can choose whoever they wish.  Common examples include a family member, a friend, a trusted colleague, a union delegate or an employment advocate/ lawyer.  Some employers mistakenly believe only work colleagues can attend. This is not correct.  The employee should generally be free to choose someone they trust.

There may be limited circumstances where an employer objects to a particular support person, for example, where they present a genuine safety concern or create a conflict of interest, but these situations are uncommon.

Is there a difference between a support person and a representative?

Although many people use the terms interchangeably, they have different roles. 

A support person is primarily there to provide assistance and moral support. 

A representative (such as an employment advocate, union organiser or lawyer) may actively represent the employee's interests.   That representative may ask questions, clarify evidence, make submissions, raise concerns about the process, and help explain the employee's position.  Many employees bring someone who performs both roles.

If your meeting invitation allows a ‘support person and/or representative’, there is generally no issue if the person's chosen support person also participates as their representative.  

What is a support person allowed to do?

The answer depends partly on who they are.

A family member or friend will usually take notes, provide reassurance, remind the employee of important information, and quietly discuss questions during breaks.  

An employment advocate or lawyer may take a much more active role by asking for clarification, requesting documents, responding to allegations, identifying procedural concerns and making submissions before any decision is made.  

The key point is that their participation should help the process, not prevent it.  A well-managed meeting should remain respectful and productive even when representatives speak on behalf of the employee.

Can I stop a support person from speaking?

Many employers believe a support person should simply sit quietly.  That is often unrealistic, particularly where the support person is also acting as the employee's representative.  A better approach is to explain the expectations at the start of the meeting.  For example, you may ask that everyone be treated respectfully, only one person speaks at a time, the employee will have opportunities to answer questions, and representatives may ask questions or make submissions at appropriate times.

If someone becomes disruptive, aggressive or prevents the meeting from progressing, you may pause the meeting and discuss how to proceed. Removing a support person should be a last resort and only where their behaviour genuinely makes the meeting impossible to continue fairly.

Can an employee refuse to attend without a support person?

If the employee has had a reasonable opportunity to organise one but chooses not to, the meeting may still proceed. However, if they have not had sufficient notice or their request for a reasonable postponement has been refused, requiring them to continue without support may create procedural problems.  Each situation should be considered on its own facts.

FAQs

Does every disciplinary meeting require a support person?

Employees should generally be offered the opportunity to bring one whenever the meeting could affect their employment.

Can I refuse a support person?

Only in exceptional circumstances. Most employees should be allowed to choose the person they trust.

Can the support person answer questions for the employee?

The employee should usually answer questions themselves, although a representative may make submissions, ask questions, or clarify matters during the meeting.

Can I insist on holding the meeting immediately?

Not usually. Employees should be given reasonable time to arrange a support person.

Can a lawyer attend?

Yes. Employees are generally entitled to bring a lawyer, employment advocate, union representative or another person of their choice.

What happens if I don't allow a support person?

If refusing a support person makes the process unfair, the employee may have grounds to challenge the disciplinary process or raise a personal grievance.

Allowing an employee to have a support person is about more than following good practice, it is about ensuring the employee has a fair opportunity to understand the concerns, respond to them, and participate meaningfully in the process.

Employers who approach these meetings professionally, respectfully and with an open mind are far more likely to reach decisions that are both fair and legally defensible.

If you're unsure how to manage a disciplinary or performance process, obtaining advice early can help protect both your business and your employees.  Contact Employer Direct to discuss your approach to disciplinary or performance meetings and processes.  Employer-Direct.co.nz | 0800 612 355

Contact Employer Direct

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