January 21, 2021

Employees have a statutory right to be accompanied by a work colleague or trade union representative at formal disciplinary and grievance hearings.

We outline below what this right entails and the obligations you must fulfil as an employer to avoid the risk of potential claims. 

When does the right to be accompanied apply?

The statutory right to be accompanied applies to both employees and workers, including agency workers and casual workers.

Disciplinary hearings 

The statutory right applies to disciplinary hearings where a potential outcome is:

  • the issuing of a formal warning;
  • the uptake of some other action, such as demotion or dismissal; or
  • the confirmation of a warning of other action.

The right also applies to disciplinary appeal hearings as they will fall under the final category.

Grievance hearings         

The statutory right only applies to grievance hearings related to the performance of a statutory or contractual duty that the employer owes the employee.

However, as the implied duty of mutual trust and confidence between an employer and employee is rather extensive, it would be advisable to take a cautious approach and assume that the right to be accompanied applies to all grievance hearings.

Informing employees of the right to be accompanied

We advise that you inform the employee of their right to be accompanied in every disciplinary or grievance hearing invite letter, so that the employee understands their right and to provide you with evidence in the event of a claim.

Poor performance meetings

An employee will have the right to be accompanied at a poor performance meeting if it could result in formal disciplinary action.

However, general performance review meetings, where there is no prospect of disciplinary action, will not give rise to the right to be accompanied.

No right to be accompanied

There is no statutory right to be accompanied at the following:

  • Disciplinary investigation meetings
  • Informal meetings regarding minor misconduct

However, such meetings must not turn into a full disciplinary hearing, whereby formal disciplinary sanctions are discussed, as this will give the employee the right to be accompanied.

It is also important to note here that your own disciplinary procedure may provide employees with the right to be accompanied to such meetings where the statutory right is not engaged.

Therefore, you should check the scope of your disciplinary procedure and any other relevant policies as failure to comply with them could result in claims.

Who can an employee be accompanied by?

The statutory right to be accompanied allows an employee to bring a companion who falls under one of three categories:

  1. Work colleague – another individual who works for the same employer.
  2. Employed trade union official – The trade union does not need to be recognised by the employer, and the employee does not need to be a member.
  3. Certified trade union official – They must have reasonable experience or training to act as a companion.

Although an employee’s request to be accompanied must be reasonable, their choice of companion does not need to be reasonable so long as they fall under one of the three categories above.

Therefore, employers have no say on who the companion is, provided they are a trade union representative or work colleague.

The selected companion should be free to decide whether they want to accompany the employee or not, so you should not influence their decision.

Disabled employees

Employers are under a duty to make reasonable adjustments for disabled employees, which extends to the right to be accompanied.

Therefore, it may be reasonable for you to allow an employee to bring a companion, such as a support worker or relative, who is outside of the statutory categories, to overcome a disability. 

Children or young workers 

There is no statutory right for any worker to be accompanied by a relative at a disciplinary or grievance hearing.

However, when conducting a disciplinary or grievance hearing with a child or young worker, it may be appropriate to allow them to be accompanied by a parent or guardian to ensure fairness and protect their wellbeing.

Company procedures and policies 

Your disciplinary procedure or other relevant policies may allow workers to bring a companion outside of the statutory categories.

Therefore, you should check whether your rules extend the statutory right as failure to comply with your own enhanced rules may mean that your procedure is unfair, increasing the risk of successful claims.

What is the role of a companion?

The role of a companion is clearly outlined in the relevant legislation.

Companions can address the hearing to:

  • present the worker’s case;
  • sum up their case; and
  • respond on the worker’s behalf to views expressed during the hearing.

They may also confer with the worker throughout the hearing.

However, the companion is not permitted to:

  • answer questions on the worker’s behalf;
  • address the hearing without the worker’s consent; or
  • prevent the worker from explaining their situation or prevent anybody else at the hearing from making a contribution.

Reasonable paid time off 

Employers are under a statutory duty to grant workers paid time off to accompany a colleague at a disciplinary or grievance hearing during their working hours.

Companions should be paid their normal rate of pay for the time spent accompanying another worker.

However, there is no obligation for an employer to pay or offer time off to a union representative acting as a companion for one of their workers; this is entirely at the employer’s discretion.

The Acas code of practice stipulates that offering companions reasonable time off includes any time spent preparing or discussing the case during working hours as well as attending the hearing itself.

Although the statutory duty to pay a companion only applies during working hours, part-time workers who accompany a colleague outside their normal working hours should be paid or granted time off in lieu if a full-time worker would be entitled to payment.

Flexibility 

Employers must be flexible in supporting a worker’s right to be accompanied, as failure to reasonably guarantee this right can give rise to a range of claims.

What if Worker attends hearing unaccompanied?

If a worker turns up to a disciplinary or grievance hearing without a companion, you should check that they have been informed of their right to be accompanied.

If they are aware of their right but have chosen not to be accompanied, you should make a note of this within the minutes of the hearing.

If they did not understand their right and would like to be accompanied, you should adjourn the hearing and rearrange it at a time when a companion is available.

What if a Companion is unavailable?

Employers are under a legal duty to rearrange the hearing if the worker’s companion is unavailable at the time and date proposed.

In this situation, the worker must suggest an alternative time within 5 days of the original hearing date.

An employer can only postpone the hearing again if the alternative time is unreasonable, for example, because of their other commitments.

If the worker’s alternative time is unreasonable, you should clearly note down the reasons why and communicate this to the worker.

You should try to find a mutually convenient time within a reasonable period to hold the hearing.

It is important to note that refusal to postpone a hearing for a reasonable period, such as two weeks, so that the worker can be accompanied by their chosen companion may make a dismissal procedure unfair even if it does not breach the statutory right to be accompanied.

Therefore, you should be flexible and try to accommodate the companion’s availability as far as possible.

However, if you reach a point where a suitable time cannot be arranged, and the matter needs dealing with promptly, you will be entitled to go ahead with the hearing without the worker’s chosen companion.

Requests for additional or legal representation

Employees have tried to argue that they are entitled to legal representation at disciplinary hearings when the outcome may prevent them from continuing to work in their chosen field, under their right to a fair hearing in Article 6 of the European Convention on Human Rights.

However, this argument has been rejected by the Supreme Court, so unless the employer’s disciplinary rules enhance the statutory right to be accompanied, workers will only be entitled to bring a trade union representative or a work colleague to disciplinary hearings.

Potential Tribunal claims

If you do not allow workers to be accompanied at disciplinary and grievance hearings, you face the risk of the following claims:

Breach of the statutory right 

Workers can bring a tribunal claim if their employer breaches their statutory right to be accompanied.

If their claim is successful, they will be awarded up to two weeks’ pay by the tribunal, subject to a statutory maximum award of £1076 (weekly pay is capped at £538).

Unfair dismissal 

If an employee is dismissed following a disciplinary hearing at which you denied them the right to be accompanied, they may bring a claim of unfair dismissal if they have two years’ service.

This is because the right to be accompanied forms part of the fair disciplinary procedure contained in the Acas code of practice.

If the tribunal decides that you unreasonably breached the code of practice by denying the employee’s right to be accompanied, the tribunal can increase the compensation award by up to 25%, which can be a significant cost to your business.

If you dismiss an employee because they tried to enforce their right to be accompanied, their dismissal will be automatically unfair.

This poses a much greater risk as there is no qualifying period for bringing a claim of automatic unfair dismissal, so all employees are entitled to bring this type of claim.

Summary of an Employees right to be accompanied

  • All workers and employees have the statutory right to be accompanied by a work colleague or trade union representative at formal disciplinary and grievance hearings.
  • You should check whether your disciplinary procedure or relevant policies enhance the right to be accompanied, e.g. allowing another companion or accompaniment at other meetings.
  • Failure to comply with the statutory duty or your own rules may result in claims.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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