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The Right to be Accompanied at Disciplinary and Grievance Hearings

Workers have a statutory right to be accompanied at disciplinary and grievance hearings by either:-

  • another of the employer’s workers;
  • a full-time official employed by a trade union; or
  • a lay trade union official whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings

Where the worker “reasonably requests to be accompanied at the hearing”. The question of when a request will be reasonable is not addressed in the legislation.

The Acas Code of Practice on Disciplinary and Grievance Procedures states that what is reasonable will depend on the circumstances of the individual case, but that “it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site”.

However, in a recent decision, the Employment Appeal Tribunal (“EAT”) has ruled that the word “reasonably” does not apply to the actual choice of representative, and so the employer could not object to the particular companion on this ground. According to this decision, the worker’s choice of companion is absolute, provided, of course, he or she is within the class of companion referred to above. Acas is to amend its Code of Practice as a result, and we are in the course of reviewing our template disciplinary and grievance procedures, which reflect the current wording of the Code.

The decision means that an employer would not be able to object lawfully to the attendance of a companion even if, say, they were subject to disciplinary allegations related to those faced by the person who is being accompanied, or they had been violent towards a member of its workforce. We would encourage any employer facing such practical difficulties to obtain specialist advice.

It should be noted that in the case before the EAT, because the claimant employee had been accompanied at the relevant hearing by a union official – albeit not his chosen official – he was awarded only nominal compensation of £2; and the maximum possible award relating specifically to a breach of the right to be accompanied is an amount equal to 2 weeks’ pay, subject to a cap on the level of weekly pay that is currently £450.

Further, a tribunal fee of £250 is now required to be paid to commence such a claim, and a further fee of £950 is payable by the claimant to proceed to a hearing.

However, if such a claim were to succeed, the fees would be payable by the respondent. Further, and in any event, no fees will be payable in relation to a specific claim relating to a breach of the right to be accompanied if it is brought in conjunction with other claims, such as for unfair dismissal; and a failure by an employer to allow a choice of companion might also contribute to a finding of unfairness, and therefore result in considerable additional compensation.

For advice relating to disciplinary and grievance procedures, contact me on 01952 211 010 or by email to john.merry@lblaw.co.uk) or my colleague Will Morse on 01432 377152; email will.morse@lblaw.co.uk). 
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