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8. The right to be accompanied
[ch 8: page 54]All workers (not just employees) have the right to be accompanied at disciplinary and grievance hearings under section 10 of the Employment Relations Act 1999 (ERA 99). There is no length of service requirement. A union may have negotiated representation rights that exceed this statutory right.
The ERA 99 says the statutory right is triggered whenever the worker asks to be accompanied, but the Acas Code goes further and says that a worker must be positively advised of the right when notified of the disciplinary meeting.
A disciplinary hearing is a hearing that could result in the employer giving the employee a formal warning, taking some other action, including dismissal, or confirming a warning or other action that has already been given.
A grievance hearing is a meeting concerning the performance of an employer’s duty to their employee, whether that duty stems from a statute (such as the Equal Pay Act 1970) or common law (such as a term of a contract). It would not, for example, include a meeting to discuss a pay review, unless the employee was suggesting that their employer was in breach of the equal pay legislation, or that they had a contractual right to receive an annual pay rise which had not been awarded. Similarly, it would not apply where an employee is requesting a discretionary car parking space, unless the employee is disabled and providing the space could be a reasonable adjustment.
The right to be accompanied applies to any meeting that could result in a disciplinary sanction. There is no statutory right to be accompanied at an investigation meeting. There is nothing to stop a workplace agreement providing the right to be accompanied in this or other circumstances (see Chapter 2: Negotiating a disciplinary procedure).
A warning will be a “formal warning” if it forms part of the employee’s disciplinary record, regardless of how it is defined by the employer:
London Underground Ltd denied Ms Ferenc-Batchelor the right to be accompanied at an investigative hearing that could have led to an informal oral warning. The EAT held that because the warning would be confirmed in writing and become part of her disciplinary record, it was a formal warning and she had the right to be accompanied. The warning, although described as “informal”, lasted for twelve months, and could be taken into account if the behaviour was repeated.
London Underground Ltd v Ferenc-Batchelor [2003] IRLR 252
It is important always to ask for the right to be accompanied. If an employer refuses on the basis that the disciplinary hearing will not result in a formal warning and then decides to impose a penalty, the fact that the employee had asked to be accompanied will make it easier to challenge the penalty.
If any meeting starts informally but then becomes more serious, it should be terminated and a formal hearing convened.