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.

A worker is free to choose their companion as long as he or she falls within one of these three categories. The worker is not legally obliged to be “reasonable” in their choice of rep, and wording suggesting to the contrary in the Acas Code of Practice on Disciplinary and Grievance Procedures is wrong. This was decided in Toal v GB Oils Limited [2013] UKEAT/0589/12/LA and confirmed in Roberts v GB Oils Limited UKEAT/0177/13/DM.

Modified draft wording in the Code makes it clear that a worker has a free choice of companion provided they fall into one of the three categories, but suggests that it may not be “sensible or helpful” to ask to be accompanied by a colleague from a remote location when a suitably qualified alternative rep is available on site, or by someone whose presence could prejudice the hearing or who may have a “conflict of interest”.

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, as opposed, for example, to an investigation meeting or a redundancy consultation meeting, 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 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”.

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 any grievance, not just those that 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 any “protected conversation” that the employer can now initiate to end the employment contract on agreed terms, under changes to the law introduced by the Enterprise and Regulatory Reform Act 2013. A new Acas Code of Practice on Settlement Agreements says that it is “good practice” for employers to allow workers to be accompanied. For more information on this change to the law and the new Code, see page 43.

An employer must make reasonable adjustments to the right of a disabled worker to be accompanied. 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 an 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 are entitled to legal representation at internal hearings under a contractual disciplinary or grievance procedure, although this is unusual.

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 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 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. For changes to the rules on making a tribunal claim, including important new rules about Acas Early Conciliation, see Chapter 1.

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 amount of the fee in this case may well wipe out the entire financial value of the claim (see Chapter 1).