The Statutory Right To Be Accompanied At A Disciplinary or Grievance Meeting

Employees and workers have a statutory right to be accompanied when they are asked, by their employer, to attend a disciplinary or grievance meeting. 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; or
  • dismissal.

Dismissal
Dismissal by reason of redundancy is not a disciplinary matter, so there is no right to be accompanied 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 Statutory Right Does Not Apply
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 you are attempting 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

When you ask an employee or worker to attend a disciplinary meeting, they have the right to be accompanied by:

  • a colleague
  • a trade union representative
  • an official employed by a trade union.

Your contract of employment may describe a wider range of people who can act as a companion.

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 you are faced with a demand for legal representation from an employee, you 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, you may decide that the presence of a solicitor or barrister is appropriate.

Disabled Employees And Reasonable Adjustments
If the employee or worker is disabled, you must make reasonable adjustments to accommodate the disability. Therefore, it may be a reasonable adjustment to allow someone else, such as the individual’s carer, to accompany the employee/worker.

The ACAS non-statutory guidance booklet has been amended to reflect what has been best practice for some time. The guidance now confirms that employers may allow workers to be accompanied by companions who do not fall within one of the three statutory categories and that the duty to make reasonable adjustments for disabled workers may even require this. For example, it may be reasonable for a vulnerable adult to be accompanied by a parent or a support worker.

Trade Union Representatives
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

To exercise the statutory right to be accompanied workers must make a reasonable request. 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.

The ACAS Code clarifies that the reference to a “reasonable” request applies to the making of the request not to the worker’s choice of companion. As such, a request made five minutes before a meeting for accompaniment by a companion located 250 miles away probably would not be reasonable. However, as long as the request is made reasonably, there is nothing stopping an employee from choosing any companion from the three statutory categories. Therefore, it appears there is little an employer can do to prevent a particularly difficult or disruptive companion attending a meeting where a request is made reasonably. However, the ERelA does limit the scope of a companion’s involvement in a meeting. The amended Code also confirms that a worker may change their chosen companion if they wish.

To prevent confusion, the Code also clarifies that choosing a companion from the same work location rather than a geographically remote location is a matter of good practice only and not a legal requirement.

TOP TIP
I always ask employees to confirm whether they wish to exercise the statutory right to be accompanied by close of business the day immediately before the day of the meeting. If they intend to exercise the right, I also ask them to confirm who the companion will be and whether they are a fellow worker or trade union official or representative.

Therefore, if an employee fails to notify you of their intention to be accompanied, they have not made a reasonable request to be accompanied and you could then go ahead with the meeting without the companion.

Choosing The Companion For The Disciplinary Meeting

The employee or worker should choose the companion. 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.

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; and
  • 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; and
  • 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.

Refusing To Allow A Companion Attend The Meeting

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. Where 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 £544 (6 April 2021).

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The Statutory Right To Be Accompanied