Discipline and grievance: the ‘right to be accompanied’

The ‘right to be accompanied’ at disciplinary and grievance hearings is something which can cause difficulties and confusion for employers. This has been further brought into focus with the introduction of the new Acas Code of Practice, which reinforces this right. Making incorrect decisions can jeopardise the fairness of a dismissal or undermine a grievance process. Here, we review this right and how it applies. What is the right to be accompanied? Where a worker is required to attend a disciplinary or grievance hearing, and the worker ‘reasonably requests’ to be accompanied at the hearing, the employer must allow the worker to be accompanied by a ‘single companion’. What is a ‘hearing’? A disciplinary hearing is defined as a hearing that could result in the issuing of a formal warning, some other disciplinary action being taken, or confirmation of these sanctions, such as an appeal hearing. There is no right to be accompanied at informal discussions or counselling/advisory meetings unless the outcome of the meeting could be a formal warning or other action. Workers often ask to be accompanied at investigatory meetings. However, there is no right to be accompanied and you are entitled to refuse such a request unless your own policies state otherwise. Problems may arise because a meeting starts out as one thing but changes into something else. If a meeting appears to be turning into a disciplinary or grievance hearing, then it should be stopped and a formal meeting arranged at which the worker will have the right to be accompanied. A grievance is a meeting at which the employer deals with a complaint about a legal or contractual duty that it owes to the employee.This raises the question of whether an employee has a right to accompaniment if they raise a complaint about something which they have no right to. However, the new Acas guidance document says that it is good practice to allow a worker to be accompanied at any formal grievance, so any attempt to restrict accompaniment to any grievance hearing now carries a risk. Who has the right? All employees, as well as any individuals who are classed as ‘workers’. What does ‘reasonably request’ mean? In order to use the right, the worker must make a ‘reasonable request’. What is reasonable may vary by employee and circumstances. Generally, it would not be reasonable for an employee to insist on being accompanied by a companion if the presence of that person would prejudice the hearing, or to insist on being accompanied by an individual who has a conflict of interest. The new Acas Code says that “it would not be reasonable to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site”.This raises the question of whether someone should be accompanied by someone who needs to travel a long way if there is no-one else available locally. In reality, any refusal carries a risk, which should be very carefully considered. Who can the companion be? A colleague, a trade union representative or an official employed by a trade union. However, if you allow staff to be accompanied by someone other than these in your policies, you have to comply with this. The employee does not have to be a member of a trade union, nor does the union have to be recognised by you in order for its representative to accompany a worker. The right is to be accompanied by a sole companion and employers are entitled to refuse a request to be accompanied by more than one person. However, in certain cases, it may be appropriate to allow an additional person to attend, particularly if the worker or companion has a disability and needs assistance at the hearing. In such circumstances the employer is under a duty to make a reasonable adjustment. Colleagues who are asked to accompany a worker at a hearing are not obliged to agree. However, if they seek reassurance that accompanying a colleague will not count against them, this should be given. Employees will often request to bring a companion who does not fit into the legal categories, such as a partner, friend or solicitor. It is usually best to limit the right. However, you should consider any request carefully before you refuse. Appropriate exceptions to this rule may arise for young workers, or a worker who would be classed as disabled under the Disability Discrimination Act. Are lawyers allowed if the worker’s career may be jeopardised? A recent High Court case has determined that, in certain circumstances, an employee may have the right to be represented by a lawyer at internal disciplinary hearings. This is where the outcome of the hearing could have very serious implications for the individual’s future career. Whilst the decision is likely to be limited to the very specific procedures in which it arose (the Claimant was a teacher), employees may raise it. Examples of situations where this may be appropriate could include disciplinary proceedings against those who work with children and vulnerable adults where the employer may have obligations to report the dismissal under other legislation. In such situations you should take legal advice. Do companions get time off and pay? If a worker is accompanied by a colleague then the colleague is entitled to take a reasonable amount of time off at usual pay. This time should cover the length of the hearing and it is good practice to allow additional time pre- and post-hearing. A trade union official should be allowed to take a reasonable amount of time off with pay to accompany a worker at a hearing if both individuals are employed by the same organisation. What is the role of the companion? The companion does not have the right to answer questions which are put to the employee. They do have the right to put forward representations on behalf of the employee and sum up the employee’s case. Sometimes it can be difficult to stop the companion responding to the questions asked, so it is worth setting out clearly at the start of the meeting what their role is. Does the new Code affect the right to be accompanied? Since 6 April 2009 most disciplinary and grievance procedures are subject to the revised Acas Code. This states that when you notify an employee of a disciplinary hearing, you should notify them of their right to be accompanied. This is the first time that employers have been required to do so, although it has always been recommended. The Code does not say the same thing for grievance hearing invites, but it is good practice to do so. Tribunals must take the Code into account and, if there has been any breach of the rules on accompaniment, this risks undermining the fairness of the dismissal. Failure to follow the Code may lead to an uplift of up to 25% on any compensation awarded. This could prove to be very expensive if, for example, the employee was refused a valid accompanier at a hearing and then succeeds in a discrimination claim. This potentially goes well beyond the traditional limited remedy of two weeks’ pay for breaching the rules. The rules still include a process that means the worker can effectively rearrange the hearing to a reasonable time and date within 5 working days of the original hearing if the date is unsuitable for their companion. This is rarely used in practice. However, the new ACAS guidance states that the employer should let the companion be involved in agreeing the date and time of the hearing. About the author This article was prepared by the FPB’s legal advisers, Mace & Jones Solicitors and is a shortened version of an article which originally appeared on their website, to read the full article click here. For more information on Mace & Jones visit www.maceandjones.co.uk