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 workplace colleague.

The right to be accompanied is regardless of length of service. To qualify as a “disciplinary hearing”, the meeting must be capable of resulting in a warning or some other action, provided that this is held on the employee’s file and represents a stage in a disciplinary procedure (London Underground v Ferenc-Batchelor [2003] IRLR 252). Whether a meeting is a disciplinary hearing, as opposed, for example, to an investigation meeting or a redundancy consultation meeting, depends on what happens at the meeting and not what the employer calls it. If it becomes clear during the course of an “investigation” meeting that some form of 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”.

Sometimes, workforce agreements allow workers to be represented in situations beyond those covered by the statutory right, including for example, redundancy consultation meetings, redeployment meetings, return to work interviews, disciplinary investigations, sickness absence progress meetings and mediation meetings.

It is usually a good idea to ask for the right to be accompanied, even if the meeting may not fall strictly within the terms of the statutory right.

If a worker’s chosen companion is not available on the date fixed for the hearing, it has to 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.

Occasionally employees may have the right to legal representation at internal hearings (see below).

At the hearing, the companion has the right to 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 s/he 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. 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 any 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. From Summer 2013, these claims will attract a fee (See Chapter 1).