You’ve Got A Friend In Me!

Wednesday 3 July 2019

As long as long as I’m a colleague or trade union official…

We glibly talk about the “the right to be accompanied” at disciplinary hearings however under Section 10 of the Employment Relations Act 1999 (ERA) an employee has the right to be accompanied to disciplinary hearings if the hearing could result in the employee receiving a formal warning or some other disciplinary action being taken.

However let’s be clear. Although some disciplinary hearings might not result in formal warnings being issued, this doesn’t mean that an employer can pay ‘lip service’ to an employee’s right to be accompanied.

Who can an employee bring?

An employee has the right to be accompanied by a colleague, a trade union representative, or an official employed by a trade union. However the employee doesn’t have to be a member of a trade union, nor must the employer have ‘recognised’ this trade union.

The employee’s contract of employment (and any relevant disciplinary policies) may also allow the employee to be accompanied by someone not on the statutory list – such as a spouse or a family member – so it’s important for an employer to check employment documents before informing the employee of their rights.

If the employee chooses a work colleague to accompany them, that colleague has the right to take a reasonable amount of time off (with pay) to prepare and attend the meeting.

It’s also essential to pay the colleague during this period. However, the employee’s chosen colleague is under no obligation to attend the meeting and shouldn’t be pressurised in to doing so.

When might an employee bring a companion other than a colleague or trade union representative?

If there is no contractual right for the employee to be accompanied by someone other than a colleague or trade union representative however the employee is disabled, has learning difficulties, or the outcome of the meeting may have a long-lasting effect on their future career, it may be good practice to allow the employee to bring a companion of their choosing.

This might be a support worker or a family member.

The employer is under no obligation to do this however any unreasonable refusal could potentially lead to a claim alleging discrimination or a failure to make reasonable adjustments.

In order to do this, the employee must make a ‘reasonable’ request to the employer.

What is reasonable will depend on the circumstances of the case and the request doesn’t have to be in writing, or be made within a particular time frame.

However, regardless of the ‘status’ of the companion the employer should give the employee and the companion sufficient time to prepare for their attendance at the meeting.

If the employee’s chosen companion is unable to attend the date proposed by the employer there are a number of options available to both the employee and the employer.

For example, the employee has the right to ask to postpone the hearing if their chosen companion is unable to attend (but only if the alternative date proposed is reasonable and is within five working days from the original hearing date).

Once again the word ‘reasonable’ plays a key part and the employer will have to decide what is reasonable based on the facts of the case.

If, for example, the meeting could result in dismissal, the employer might prefer to avoid an allegation of procedural unfairness by allowing a postponement which is longer than five days (as long as the postponement doesn’t cause any unreasonable delays).

Can the employer prohibit a chosen representative from accompanying an employee?

The employer may believe it has good reason to ban a colleague or a trade union representative from accompanying an employee to a disciplinary hearing. However the employer risks being accused of being in breach of Section 10 ERA.

Although recent case law suggests that the Employment Tribunal should look at the employer’s reasoning for objecting to a particular individual. For example, if the employer can demonstrate a legitimate reason for not permitting the chosen representative to attend a disciplinary hearing, the Tribunal is likely to award only nominal compensation for breach of Section 10.

Unreasonable conduct

The question of what is ‘reasonable’ will depend on the facts of the individual case and the surrounding circumstances.

If an employee feels that the employer has acted unreasonably the employee could bring an Employment Tribunal claim. If the employee was successful the Tribunal could award compensation of up to two weeks’ pay (currently capped at £525 per week).

Unreasonable conduct by the employer could also strengthen a potential unfair dismissal or discrimination claim. That could involve an up-lift in the compensatory award for failure to follow the ACAS Code of Practice – and with awards in discrimination claims being uncapped, the financial cost could escalate.

Therefore employers should look carefully at the circumstances of a particular case and then act reasonably.

An employer should also think carefully before refusing an employee’s request to be accompanied by their chosen companion, and always ask the question “Is this what a reasonable employer would do in this situation?”.