The right to be accompanied by a colleague or trade union official at disciplinary and grievance hearings is likely to be a familiar concept to employers. Here we discuss the nuances of that right and what could happen if there is a breach.
What are the worker’s rights?
The statutory right to be accompanied is set out in the Employment Relations Act 1999. The right is not limited to employees and applies irrespective of length of service. A worker is entitled to be accompanied at a disciplinary or grievance hearing, should the worker reasonably request to be accompanied. The worker is entitled to one companion that can be either a colleague or a trade union representative.
If the worker’s companion is not available on the date set for the hearing, the worker is able to request the hearing is rescheduled in order for their companion to attend. An alternative date should be suggested by the worker and should be within five working days of the original hearing date. If it is, then the employer must agree to reschedule.
The worker does not need to be a member of a trade union in order to ask for a trade union companion, and the union itself does not have to be recognised by the employer. Further, the worker has the right to chose who they want to be their companion and an employer cannot deny the choice of companion provided the companion is a colleague or trade union representative, even if the companion’s presence might prejudice the hearing.
Bear in mind that the statutory rights set out the minimum requirements that must be observed. Employers are able to widen the right or use their discretion as may be required in certain circumstances, for example, allowing a family member or case worker to attend as a reasonable adjustment in situations where the worker is known to have a disability.
What are the companion’s rights?
There are limits to what a companion can do at a hearing. They can put the worker’s case forward, they are allowed to respond on behalf of the worker to any view expressed at the hearing, and they can confer with the worker throughout. However, the employer does not have to allow the companion to answer questions on the worker’s behalf or address the hearing if the worker does not wish them to. The companion is not entitled to use their powers as a companion in a way that prevents the employer from explaining its case.
A companion, whether it is a colleague or a trade union representative, must be permitted to take paid time off during working hours to accompany the worker to the hearing.
What counts as a disciplinary or grievance hearing?
A disciplinary hearing is defined as a hearing that could result in the administration of a formal warning to a worker by their employer, or the taking of some other action in respect of that worker by the employer, or the confirmation of said warning or some other action (such as might be the case in an appeal).
In this case, whether the right to be accompanied is triggered will depend on the nature of the meeting and whether it constitutes a hearing where a decision is being made. An investigation meeting itself will generally not be one where decisions are made or where the individual is at risk of receiving a warning or other action. In contrast, a performance or absence management hearing could fall into this category if it is the case that the worker may receive a warning or be dismissed as an outcome of that hearing.
A grievance hearing is one which concerns the performance of a duty by an employer in relation to a worker and will usually arise in the case of a worker making a complaint. This could also extend to workers making whistleblowing complaints if there is a separate process for such.
To avoid any doubt, it is good practice to allow the worker to be accompanied to a range of hearings or meetings. This also helps to build trust and confidence between the worker and employer, as the worker will be able to obtain support when facing a potentially daunting process.
Be aware that there is no requirement for a hearing to be held in-person and the right to be accompanied still applies if holding the meeting remotely (either online or by telephone). Suitable facilities such as video or telephone conferencing will be required to allow everyone to attend.
What if there is a breach?
A worker can bring a claim to an employment tribunal in the event that they are prevented from exercising their right to be accompanied or if the right is otherwise breached. A successful claim will result in the worker being awarded an amount of up to two weeks’ pay. A week’s pay is calculated in accordance with the Employment Rights Act 1996 and is currently capped at £571.
The risk of a breach may therefore seem low although in addition to the nominal compensation there will be the associated time and costs to take into account. Employers should be aware that a worker could also bring claims for detriment or automatically unfair dismissal if they have suffered such as a result of exercising or seeking to exercise their right to be accompanied.
For a detriment claim to succeed, the detriment must be something further than having to attend the hearing unaccompanied. An example could be refusing to hold an appeal meeting because of the choice of the worker’s companion. Successful detriment claims are generally awarded by way of injury to feelings so can be much more costly than a mere breach of the right to be accompanied.
Automatic unfair dismissal claims in this respect are unusual because this is a right generally reserved strictly for employees. In this case, a claim can actually be brought by a worker with any length of service.
If it is not found to be an automatic unfair dismissal, then it could lead to a finding of ordinary unfair dismissal (but only if it is an employee with the requisite two years’ service) on procedural grounds. If an award is made in that respect, there could also be an uplift of compensation up to 25% for failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures so this can lead to much more substantial costs to the employer.
In view of the risks, employers are well advised to ensure workers are appropriately accompanied. Where a worker chooses to attend a hearing without a companion, this fact, along with the fact that the worker is aware of their right to be accompanied, should be noted in the minutes of the meeting.
