An Employee’s Right to be Accompanied: What Employers Need to Know
All employees have a legal right to be accompanied to meetings in certain circumstances, and this applies regardless of their length of service.
When does it apply?
The legal right is triggered if an employee is called to a disciplinary hearing or grievance hearing. A “disciplinary hearing” is defined as any hearing which could result in:
- The administration of a formal warning;
- The taking of some other action against an employee; or
- The confirmation of a warning given or some other action (such as dismissal) taken.
The above would include capability processes but redundancy consultations wouldn’t trigger the legal duty to be accompanied. However, it’s best practice to allow this and refusing someone this right could render the redundancy process unfair.
Employees don’t have a legal right to be accompanied to disciplinary investigations as no formal action will be taken as a result of that meeting, though any request should be considered.
Who does it cover?
The legal right extends to trade union representatives and the employee’s colleagues. The employee doesn’t have to be a member of the union the rep comes from, nor does the union have to be recognised by the employer – any union rep will trigger the right. There is no general legal right to have a qualified legal representative accompany employees.
An employer can’t reject the employee’s choice of companion if they are a trade union rep or a colleague.
If the employee wanted to bring someone outside of these categories (such as a family member), this is at the employer’s discretion. That being said, you should have some objective reasons if such a request is rejected.
What if the rep/colleague isn’t available?
The employee has the right to suggest an alternative time which is not more than five working days later. If that time is reasonable, the employer must rearrange the hearing for that time.
Where the employee’s chosen companion is not available within five working days of the original hearing date, the employer should consider rearranging the hearing for a later time when the companion is available.
What is “reasonable” will depend on the circumstances, but sticking strictly to the letter of the law and only allowing a five working day delay isn’t going to be reasonable in every and any situation.
What can the rep/colleague do?
Whoever accompanies the employee is able to address the hearing (including putting the employees case forward and responding to any views expressed) and confer with the employee.
There is no right to answer questions on behalf of the employee or act in a way that prevents the employer from presenting its case. ACAS guidance stresses that it is good practice to allow companions to participate as fully as possible.
What happens if I unreasonably refuse a companion?
An employee can bring a tribunal claim if this legal right is breached and if the claim is upheld, the employer must pay the employee up to a maximum of two weeks’ wages. The tribunal could also increase this award by up to 25% given it would also be a breach of the ACAS code.
Rejecting a companion can also jeopardise the fairness of whatever process is ongoing at the time.
An employer should therefore think carefully before rejecting an employee’s preferred companion, especially if they are a trade union rep or a colleague.
Author: Jonothan Scollen, Employment Law Solicitor at Howarths
