The right to be accompanied

Under section 10 of the Employment Relations Act 1999 (ERA 99) as amended by the ERA 2004, a worker required or invited by an employer to attend a disciplinary or grievance hearing has the right to bring a companion. The companion is chosen by the worker and can be:

• a full-time union official (whether or not the union is recognised);

• a certified lay official (someone the union has trained to accompany individuals to hearings); or

• a co-worker sharing the same employer.

In March 2015, Acas formally amended its Code of Practice on Discipline and grievance procedures to confirm that workers have the absolute right to choose who is to accompany them to a formal disciplinary or grievance meeting as long as their chosen companion falls within one of the above three statutory categories.

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 instance, 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.

www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-procedures.pdf

The way the request is made must be “reasonable”. The Code says that what is reasonable depends on the circumstances of the individual case. The request does not have to be in writing (although this is obviously sensible), or made within a particular time frame. However, “a worker should provide enough time for the employer to deal with the companion’s attendance at the meeting”. Workers should provide the name of the companion in advance where possible, says the Code, and should confirm whether they are a fellow worker, trade union official or rep. These changes to the Code are the result of two Employment Appeal Tribunal rulings — Toal v GB Oils Limited [2013] UKEAT/0589/12/LA and Roberts v GB Oils Limited [2013] UKEAT/0177/13/DM.

The right to be accompanied is available regardless of length of service.

To qualify as a “disciplinary hearing”, the meeting must be capable of resulting in a Formal Warning or some other action, to be held on the employee’s file and representing a stage in a disciplinary procedure (London Underground v Ferenc-Batchelor [2003] IRLR 252).

Whether a meeting is a disciplinary hearing depends on what happens at the meeting, not what the employer calls it. If it becomes clear during the course, for example, of an “investigation” meeting that disciplinary action is being considered, the worker can ask for the meeting to be adjourned (Skiggs v South West Trains Ltd [2005] IRLR 459).

To qualify for the statutory right to be accompanied, a grievance hearing must concern “the performance of a duty by an employer in relation to a worker”.

It is sensible always to ask to be accompanied by a companion, even if the meeting does not strictly qualify under the statutory right. Workforce agreements often allow workers to be represented in situations beyond those covered by the statutory right, for example, meetings to discuss grievances that do not meet the statutory test, redundancy consultation meetings, redeployment meetings, return to work interviews, disciplinary investigations, sickness absence progress meetings and mediation meetings.

A worker has no statutory right to be accompanied to a “without prejudice” meeting to discuss settlement of their claim. This includes protected conversations (see page 426) although the Acas Code of Practice on Settlement agreements describes it as “good practice” for employers to allow workers to be accompanied. The rules on protected conversations are explained on pages 426-428.

An employer must make reasonable adjustments where a worker is disabled. For example, in Royal Bank of Scotland v O’Doherty UKEAT/0489/12/RN, it was a reasonable adjustment to allow a disabled employee to be accompanied to his investigation meeting. For more examples, see LRD’s booklet Disciplinary and grievance procedures — a practical guide for union reps (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1630).

Some employees have a contractual right to legal representation at internal hearings, but this is unusual.

With rare exceptions, Article 6 of the European Convention on Human Rights does not provide a right for employees to be legally represented at an internal disciplinary hearing (Re (G) v Governors of X School [2011] UKSC 30).

If a worker’s chosen companion is not available on the date fixed for the hearing, it must be postponed, provided the new date is reasonable and within five days of the original hearing. Sometimes negotiated workforce agreements include more flexible rules on postponing meetings.

At the hearing, the companion can put the worker’s case, confer with the worker, sum up the case and respond on the worker’s behalf to any view expressed at the hearing, but the companion cannot answer questions on behalf of the worker.

The worker and the companion have protection against any detrimental act or dismissal in connection with exercising these rights, and can take a claim to a tribunal within three months (see Chapter 13: Bringing a tribunal claim).

If working for the same employer, both the companion and the worker have the right to be paid. It is automatically unfair to dismiss an employee for acting as a rep or companion for another member of staff. There is no qualifying service requirement. A lay official working for a different employer is protected from detrimental action by that employer, but has no right to be paid for time taken to deal with the hearing.

An employee can take a claim to a tribunal if the employer refuses to let them bring their chosen companion to the hearing. As with all tribunal claims, there is now a fee. The level of fee in this case is likely to wipe out the entire financial value of this kind of claim. Acas Early Conciliation applies (see Chapter 13: Bringing a tribunal claim).