When does a worker have the right to be accompanied by a companion?

Many employers have policies allowing workers to be accompanied to meetings, but when do workers have the legal right to have a companion? Our Employment Law Team today examines this question and looks at some of the consequences of denying a worker this right.

Disciplinary and grievance hearings and the right to be accompanied

Section 10 of the Employment Relations Act 1999 (ERA 1999) gives workers the right to be accompanied at a disciplinary or grievance hearing. A disciplinary hearing is any hearing which could result in:

• A formal warning against the worker;
• Other action against the worker (such as dismissal); or
• The confirmation of a warning or other action taken.

This definition includes capability hearings and appeal hearings.

The ERA 1999 states that a worker has the right to be accompanied by a colleague or a trade union official.  The worker does not need to be a member of the trade union to be accompanied by its official, nor must the trade union be one that is recognised by the employer.  Provided the worker has selected a companion that is a colleague or trade union official as defined by the ERA 1999, you do not have the right to deny the worker their choice of companion.

If the companion is not available on the date of the hearing, the worker can suggest an alternative time within five working days of the original date. If the suggested alternative time is reasonable, you must agree to postpone the meeting.

In some cases, you may wish to suggest that the choice of companion is not appropriate (for example, the worker may wish to bring their line manager as a companion who is also going to be called as a witness).  This is an area where you should tread carefully and we would always suggest that you take legal advice on the particulars of your case so that you can manage the situation and lessen any legal challenges if the case were to later reach an Employment Tribunal.

Can I extend the right to be accompanied?

Workers only have a statutory right to be accompanied to a disciplinary or grievance hearing. However, you may choose to extend this right to other instances to show that you are being fair.  These include:

• Redundancy consultations;
• Disciplinary investigations;
• Meetings to consider a flexible working request.

You should also check your policies and employment contracts to see if you already provide a right to be accompanied at any other meetings. If you do, your policy should be followed regardless of the legal right.

Who can my worker bring as a companion?

Some workers may ask to be accompanied by someone who is not a colleague or trade union official such as a family member. While you do not need to agree to this, you should consider their request and the surrounding circumstances. Allowing a worker to be accompanied by a family member or close friend may be appropriate, for example where the worker’s first language is not English and their proposed companion can assist with interpretation. It may also be appropriate where the worker is disabled, and allowing them to be accompanied by a companion who falls outside the statutory definition would be a reasonable adjustment.

What are the risks of refusing to allow a worker to be accompanied?

If you deny a worker their right to be accompanied by a companion of their choice, the worker may have a claim against you at the Employment Tribunal. If the tribunal finds in favour of the worker they can award compensation of up to two weeks’ pay, which is capped at the statutory maximum set by the Government each year. Case law has suggested that the remedy for breaching a worker’s right to choose their companion may be nominal where the worker has suffered no real detriment. However, denying a worker this right still carries risk and may indicate that you acted unreasonably in an unfair dismissal case.  

If you are taking a worker through a disciplinary or grievance procedure and have questions about how to accommodate their right to be accompanied, contact our Employment Law Team today by emailing employment@warnergoodman.co.uk or call 023 8071 7717.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.