The right to be accompanied

The whole issue of an employee’s and worker’s right to be accompanied can often cause problems for employers. Stuart Chamberlain, author and senior employment law consultant at Croner-i explains the central issues and provides advice.

Employees and workers have a statutory right to be accompanied when they are summoned by their employer to attend a disciplinary or grievance hearing. The person who accompanies them at such meetings is known as a “companion”.

The revised Acas Code of Practice on Discipline and Grievance (2015) provides guidance on the statutory right of accompaniment. Where necessary, references are made to the Code.

The right to be accompanied

An employee or worker has the right to bring someone (the “companion”) to a disciplinary or grievance meeting. This is a meeting which can lead to disciplinary action. Such disciplinary action could be:

  • a first or final warning

  • suspension without pay

  • demotion

  • dismissal*.

*

Note:

that dismissal by reason of redundancy is not a disciplinary matter, so there is no right of accompaniment when a meeting is held to inform employees that they are at risk of redundancy. However, the right of accompaniment is likely to extend to the final meeting in the redundancy consultation process.

When the employee cannot be accompanied to a meeting

The employee or worker does not have the right to be accompanied to an informal chat with the employer or to an initial fact-finding or investigatory meeting — where your employer attempts to find out what has happened.

A request to be accompanied may be made by the employee or worker in these circumstances but the employer does not have to agree to this.

Who can accompany the employee or worker

If the employee or worker is asked to attend to a disciplinary meeting, they have the right to be accompanied by:

  • a colleague

  • a trade union representative

  • an official employed by a trade union.

Only these have the statutory right of accompaniment unless there is a wider range of people set out contractually.

Legal representation

There is no general right to legal representation at a disciplinary hearing and such contractual entitlement is likely to be rare. There was an argument that, where a hearing is likely to end an individual’s ability to pursue a chosen profession (such as consultants in the NHS and teachers), then there was an entitlement to legal representation. And it was necessary to secure the right to a fair hearing under the European Convention on Human Rights.

The Supreme Court put a stop to these arguments in a judgment in 2011 (R (on the application of G) v Governors of X School and Y City Council) , ruling that there was no right to legal representation at a disciplinary hearing under the Human Rights legislation.

If an employer is faced with a demand for legal representation from an employee, it must consider the facts of the situation and the gravity of the allegations. The request can be declined for the reasons set out by the Supreme Court. However, if the allegation against the employee is of a serious criminal or sexual nature, the employer may decide that the presence of a solicitor or barrister is appropriate.

A refusal to implement a contractual right to legal representation is likely to amount to a breach of the implied term of trust and confidence between employer and employee (Stevens v University of Birmingham).

If the employee is disabled

If the employee or worker is disabled, the employer must make reasonable adjustments to accommodate the disability. It may be a reasonable adjustment for the employer, therefore, to allow someone else, such as the individual’s carer, to accompany the employee/worker.

If the employee is not a member of a trade union

The individual does not need to be a member of a trade union to ask an official from any trade union to accompany them. Nor does the trade union have to be recognised by the employer.

Exercising the right to be accompanied

It is for the employee or worker to choose the companion. The Acas Code of Practice states that, to exercise the statutory right to be accompanied, workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case.

A request to be accompanied does not have to be in writing or within a certain time frame. However, an employee /worker should provide enough time for the employer to deal with the companion's attendance at the meeting. The employee or worker should also consider how they make their request so that it is clearly understood, for instance by letting the employer know in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative.

There is no legal requirement on the employer to let the individual be accompanied at the hearing unless there has been a request. However, the Acas Code of Practice advises employers to remind employees of the right to be accompanied when issuing the invitation to attend the disciplinary or grievance hearing.

Choosing the companion for the disciplinary meeting

The employer cannot refuse the choice of companion on the grounds that the choice is not a reasonable one — for example, it would be prejudicial to the hearing. It is only the request to be accompanied that needs to be reasonable.

A judgment made by the Employment Appeal Tribunal (EAT)in 2015 (Toal and another v GB Oils) clarified the rules around reasonable requests to be accompanied at a grievance or disciplinary hearing. The EAT found that workers had the right to be accompanied at these hearings by any companion as long as they were either a trade union official, certified union representative or a fellow worker

If the prospective companion accepts, they have the right to a reasonable amount of paid time off during working hours to prepare for the hearing.

If the companion cannot make the date of the meeting, the employee or worker may ask for the hearing to be rearranged — this rearrangement should be a reasonable time after the original date and is within the following five working days.

The person who the employee or worker chooses as companion does have the right to refuse the invitation.

What the companion can and cannot do at the meeting

The companion can:

  • address the hearing on the employee’s or worker’s behalf

  • take notes on the employee’s behalf

  • discuss/talk things over with the employee/worker during the hearing

  • respond on the employee’s/worker’s behalf to any views expressed during the meeting

  • sum up the employee’s case

The companion does not have the right to:

  • respond to questions on the employee’s/worker’s behalf

  • address the hearing if the employee/worker does not want them to

  • prevent the employee or worker explaining the case

Overall, it is regarded as good practice for the employer to allow the companion to participate as fully as possible.

If the employer refuses to let anyone accompany the employee

If an employer refuses a reasonable request to be accompanied by a colleague, trade union representative or official, the employee is entitled to point out to the employer that they have a legal right to be accompanied.

If the employer still refuses, the employee can make a claim to an employment tribunal, which could result in compensation of up to two weeks' pay. A week's pay is currently capped at £525.

Top tips for employers

  • Be familiar with the 2015 Acas Code of Practice on Discipline and Grievance, which provides basic practical guidance to employers (and also to employees and their representatives) and sets out principles for handling disciplinary and grievance situations in the workplace.

  • Ensure that the right of accompaniment, with all the points set out above, is included in the organisation’s policies and procedures.

  • When issuing the letter requiring an employee or worker to attend a disciplinary meeting, ensure that the individual concerned is reminded of the right of accompaniment.

  • Be clear about the organisation’s policy and the circumstances of the hearing if the individual requests to bring a friend, relative or legal representative to the hearing.

  • If the hearing may affect the individual’s continuation in a profession or is concerned with a serious criminal/sexual issue the employer may wish to consider a legal representative accompanying the individual — although there is no legal right to such representation, unless it is contractual.

Seek professional advice

For professional advice on dealing with any HR matters, speak to a qualified consultant on 0844 561 8149.