It is widely known by many employees that they are entitled to be accompanied to disciplinary and grievance hearings but that right is often misunderstood. This can lead to tensions arising in the build-up to the hearing or even at the door of the hearing itself. So who is the right companion?
If an employee makes a reasonable request to be accompanied, an employer must allow them to be accompanied by a person of the employee’s choosing subject to the companion falling into one of the following categories:
- Employed by the trade union of which they are an official;
- Any other official of a trade union (with reasonable written evidence from the union of that person’s experience of acting as a companion); or
- Another of the employer’s workers.
The Acas Code of Practice on disciplinary and grievance procedures makes it expressly clear that, in addition to the request itself being reasonable, the employee’s choice of companion must also be reasonable. For example, it would not normally be reasonable to choose a companion who might prejudice the hearing or a colleague based in a remote geographical location.
However, following an Employment Appeal Tribunal (EAT) decision on the right to be accompanied*, Acas has now reviewed the corresponding provisions of its Code. The case confirmed that as long as an employee’s choice of companion falls within one of the statutory definitions (as set out above) then the identity of that companion is entirely up to the employee. In other words, the request must be reasonable but the choice of companion need not be. As long as the companion satisfies the statutory definition the employer cannot interfere with the employee’s particular choice.
The draft wording of the amendment to the Code is currently being reviewed by Parliament so we wait to see if it will be adopted. If so, the new wording would be broadly in line with the EAT’s decision by allowing an employee free choice of the identity of their companion as long as they fall within one of the three statutory descriptions.
Is it an absolute right?
It would seem so. So what does this mean for the employer if the choice of companion is unreasonable? For example what if the companion is also a witness in the disciplinary investigation?
The EAT offered some hope to employers facing seemingly unreasonable requests by suggesting there should be a very low level of compensation for the employee. The EAT confirmed that if the employee suffered no loss or detriment as a result of the breach, a Tribunal may award the employee minimal compensation. The EAT thought that something like £2 would be appropriate. This may result in employers taking the risk of a technical breach in some situations.
Can an employee be accompanied by anyone else?
Some internal company procedures allow employees to be accompanied by other individuals who do not fall within the above definitions. However, even if the procedure does not allow for this, in some situations it may be reasonable for an employer to grant such a request. For example, minors or individuals with disabilities often request a parent or family member to attend; in many situations this would be a reasonable request and may in fact be advantageous to both parties and lead to a more productive meeting.
What should employers do?
- In any letter inviting an employee in to a disciplinary or grievance hearing, always set out the employee’s statutory right to be accompanied by either a trade union representative or a colleague
- Ask the employee to confirm their choice of companion in good time before the hearing. In the case of a colleague acting as a companion, this will provide the employer with an opportunity to make sure that individual is kept available for the hearing
- On receipt of an employee’s request to be accompanied consider whether the manner of the request is reasonable. For example, does the request give the employer sufficient time to make that colleague available or does it provide sufficient details confirming that the trade union representative meets the statutory definition?
- If an employee asks to be accompanied by an individual who is “off list” ask the employee to provide more details on who the individual is, how they know them and what their reasons are for not requesting to be accompanied by a companion meeting the statutory definition
- If the employer does not agree with the employee’s choice of companion the employer should inform the employee in writing why it is that companion is not acceptable and invite the employee to choose an alternative. However, be aware that this could be a technical breach of the employee’s right to be accompanied.
As we all know, the law in this area does not stand still, that’s why we have decided to run some detailed masterclasses to develop expert investigators, disciplinary and appeal officers. Delegates will be given practical tips for creating a transparent framework to facilitate effective action. The objective is to ensure a fair process for all, reducing litigation and improving prospects of successfully defending claims if they do result. If you are interested in attending, click here for more information, or email email@example.com.
* Toal v GB Oils Ltd  I.R.L.R. 696