The statutory right to be accompanied 




Much union facility time is spent by reps and officials accompanying members to discipline and grievance hearings under the statutory right to be accompanied.



Under section 10 of the Employment Relations Act 1999 (ERA 99) as amended, a worker who is required or invited by an employer to attend a disciplinary or grievance hearing has the statutory 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.




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




Under the Acas Code on Disciplinary and Grievance Procedures, 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 (Toal v GB Oils Limited [2013] UKEAT/0569/12/LA and Roberts v GB Oils Limited [2013] UKEAT/0177/13/DM). 


The Code suggests that as a matter of good practice, when making their choice, workers should consider “the practicalities of the arrangements”, for instance by choosing to be accompanied by a companion who is suitable, willing and available on site, rather than someone from a geographically remote location. 


The way the request is made must be “reasonable”. The Code says that what is reasonable depends on the circumstances. The request need not be in writing (although this is obviously sensible), or made within a particular timeframe, but the Code recommends that “a worker should provide enough time for the employer to deal with the companion’s attendance at the meeting”, should provide the name of the companion in advance where possible, and should confirm whether they are a fellow worker, union official or rep. 




To qualify as a disciplinary hearing, a 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 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” (section 13(5), ERA 99).




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. These could include meetings to discuss grievances that do not meet the strict statutory test, redundancy consultation meetings, redeployment meetings, return to work interviews, disciplinary investigations, sickness absence progress meetings and mediation meetings. 




In Stevens v University of Birmingham [2015] EWHC 2300, the High Court ruled that refusing an employee his chosen companion was a fundamental breach of the implied contractual duty of trust and confidence (see Chapter 3). 



A worker has no statutory right to be accompanied to a “without prejudice” meeting to discuss settlement of their claim. This includes “protected conversations”. However, the Acas Code of Practice on Settlement Agreements says it is “good practice” to allow these workers to be accompanied. The rules on protected conversations are explained in Chapter 14, page 471. 




An employer must make reasonable adjustments to the right to be accompanied where a worker is disabled. For example, in Royal Bank of Scotland v O’Doherty [2013] UKEAT/0489/12/RN, it was a reasonable adjustment to allow a disabled employee to be accompanied to his investigation meeting even though the bank’s procedure did not allow for this.




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




Under Article 6 of the European Convention on Human Rights (the Convention), everyone has the human right to an independent and impartial tribunal established by law. However in most cases, the Convention does not entitle employees to be legally represented at an internal disciplinary hearing (Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068, 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 once, provided the new date is reasonable and within five days of the original hearing. Sometimes 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, or if the employer refuses to let them bring their chosen companion in breach of the statutory rules (see Chapter 14: 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.