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Who can be a companion?
[ch 5: page 55]An employee can be accompanied by a single companion who is either:
• a trade union official;
• a trade union representative with appropriate experience or training in acting as a companion, who has been certified in writing by the union; or
• a co-worker employed by the employer.
The employer must make reasonable adjustments if the worker is disabled — for example, considering whether to allow them to be accompanied by a disability support worker or a partner. Equally, an employer should make reasonable adjustments if the companion has a disability (see Chapter 7: Arranging the hearing).
A worker can ask for rep from any union, regardless of whether or not the union is recognised, or whether it has other members in the workplace.
In March 2015, Acas amended its Code of Practice on disciplinary and grievance procedures to confirm that workers have the absolute right to choose who is to accompany them as long as their chosen companion falls within one of the three statutory categories above.
The new Code suggests that as a matter of good practice, when making their choice workers should “bear in mind the practicalities of the arrangements”. For example, says the Code, a worker may choose to be accompanied by a companion who is suitable, willing and available on site, rather than someone from a geographically remote location.
In some circumstances, it may be a breach of the implied contractual duty of trust and confidence to deny an employee representation rights that go beyond their basic statutory or contractual entitlement:
Professor Stevens was a university academic who was the subject of certain allegations relating to his role as chief investigator of clinical trials of diabetes patients. He was invited by the university to an investigation meeting. His contract entitled him to be accompanied by either a trade union rep or an existing work colleague. Stevens was not a union member and none of his colleagues were suitable companions. However he had been assisted, from the start of the allegations, by a representative from the Medical Defence Society (MDS).
The Court held that on the facts of this case, it was a breach of the university’s duty of mutual trust and confidence not to allow the MDS rep to accompany Stevens to the investigation meeting because of (a) the inequality between the two sides; (b) the seriousness of the allegations; (c) the fact that the MDS rep was carrying out a similar representative role to a union rep in this case; and (d) the fact that the university had allowed the MDS to assist Stevens up to the stage of the investigation hearing.
Stevens v Birmingham University [2015] EWHC 2300