FAQs: the right to be accompanied
Employees and workers have a legal right to be accompanied by a trade union representative or colleague at a disciplinary or grievance hearing. This right is set out in section 10 of the Employment Relations Act 1999.
This may strike you as quite straightforward, but actually employers can face many difficulties with regard to the right to be accompanied, and even more surprisingly a number of Employment Tribunal cases have been raised over the years about this.
We covered some recent case law about the right to be accompanied in our Summer Workshops, and we thought it would be helpful to examine some common questions we get asked about this area:
Should we offer an employee the opportunity to have a companion at a redundancy consultation meeting?
Legally, the right to be accompanied only covers disciplinary and grievance hearings (including any appeal hearings). Therefore, technically, you do not have to allow a companion to any type of meeting which is not a disciplinary or grievance hearing, including a redundancy consultation meeting. However, you do need to be aware that the definition does include capability hearings.
That said, most employers do choose to allow a companion to meetings such as redundancy consultations to provide support to the employee. This helps to show that as an employer you are acting fairly. Employers should also be mindful that their policies or even contractual terms may require the right to be accompanied to be offered for some types of meetings even if these are not disciplinary or grievance hearings. It is also worth bearing in mind that there is a duty on employers to make reasonable adjustments for disabled employees in certain circumstances, which could include allowing a disabled employee to be accompanied at meetings other than disciplinary or grievance hearings, or allowing a companion other than a colleague or trade union representative (see below).
An employee wants to bring a member of their family to their disciplinary hearing. The family member is not one of our employees. Should we allow this?
The legal right is only for the employee to bring a trade union representative or a colleague. Therefore, you do not have to allow the employee to bring the family member to the hearing.
However, it is best to take a view on such requests. You may wish to allow this if for example, the employee does not speak English as their first language and wants assistance in interpretation, or if the employee has anxiety disorder and finds that the family member is best to make them less anxious. As always, employers should act reasonably when dealing with disciplinary or grievance matters and this may mean being more flexible in some circumstances.
Failure to act reasonably and allow a requested companion can lead to claims that an employer has fundamentally breached of the implied duty of trust and confidence – as happened in the case of St Francis Hospice and Burn [2013] (our article about this case can be found here).
An employee wants to bring their trade union representative to their grievance hearing. We do not want to allow this because the trade union representative is considered as a trouble-maker. What could the employee do if we said they could not bring anyone?
The employee is entitled to bring a claim in the Employment Tribunal if their employer fails, or threatens to fail, to comply with their right to be accompanied. If their claim is successful, employers could be liable to pay compensation to the employee of up to two weeks’ pay. A week’s pay is subject to the statutory maximum which is set by the Government each year (currently this is £489).
Employers should not deny an employee’s choice of companion if their choice meets the legal requirements, i.e. the companion is a trade union representative or colleague.
However, recent cases have identified that the compensation awarded may be limited if the employee has not suffered any loss or detriment despite the employer refusing to allow a particular companion. In the case of Toal v GB Oils [2013] (as covered in our article here), the Employment Appeal Tribunal suggested that nominal compensation of £2 could be awarded if a breach is not considered as serious. In this case an employer refused to allow a particular union representative to attend grievance hearings with an employee, but the employee took a colleague and then a different trade union representative.
A similar issue came up in a more recent case, Gnahoua v Abellio London Ltd [2015] (as covered in our article here) where an employer refused to allow two particular union representatives (who were brothers) to accompany an employee because they had behaved badly in a previous Employment Tribunal case (where the brothers were ordered to pay a costs order of £10,000). Compensation of only £2 was ordered in regard to the breach of the legal right to be accompanied, and the Employment Tribunal said that there must be a particular detriment over and above the employee not having a companion at the disciplinary or grievance hearing for the full two weeks’ compensation to be awarded.
We would not normally recommend that you outright ban an employee from bringing any companion, as this is a risky approach. However, there may be circumstances where an employer who refuses to allow a particular companion if there is good reason to do so, whilst likely breaching the legal right to be accompanied, may be faced only with having to pay limited compensation. We would always recommend that employers take legal advice on such situations before deciding to prevent an employee from bringing a particular companion.
Does the employee have to be a member of the trade union if their chosen companion is a trade union representative?
No, the employee does not have to be a member of the trade union, and the trade union does not have to be one that is recognised by the employer.
We have come across some situations where there are ‘freelance’ union representatives who attend hearings with employees, and this is permitted within the definition.
One of our employees has advised us that their chosen companion is not available for on the date of the disciplinary hearing. Can we insist it goes ahead anyway?
The short answer is no. The employee has the right to suggest an alternative time which is not more than five working days later than the original date for the hearing. If that time is reasonable, the employer must rearrange the hearing for that time.
What can the companion do during a hearing?
The role of the companion is limited. The companion is permitted to address the disciplinary hearing (including putting the employee’s case, summing up, and responding on the employee’s behalf to any view expressed at the hearing) and to confer with the employee during the hearing. There is no right to answer questions on behalf of the employee, address the hearing contrary to the employee’s express wishes, or act in a way that prevents the employer explaining its case or prevents any other person making a contribution to it.
What rights does the companion have?
An employee or worker who is attending a disciplinary hearing as a companion (whether or not they are also a trade union official) has a right to paid time off during working hours to act as a companion. They must not be subject to any detriment or dismissed because they have acted (or sought to act) as a companion.
One of our employees has been accused of an act of gross misconduct. The employee wants to bring their solicitor to the disciplinary hearing. Should we allow this?
There is no general right for an employee to have a solicitor at a disciplinary hearing; only a colleague or union representative. However, some employee’s may have rights in their contracts of employment to be allowed to be accompanied by a solicitor (for example, NHS doctors).
There was some case law a few years ago which suggested that solicitors should be allowed for specific cases where dismissal could result in the employee being prevented from working in their chosen profession in future. However, this has now been limited in scope, and generally you do not have to allow a solicitor to accompany an employee.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).