Companions at Disciplinary and Grievance Hearings, where are we now?

Posted 16/01/2014

Employees have a statutory right to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing, and may be entitled to compensation if an employer denies them that right.

The ACAS Code of Practice on discipline and grievance currently underlines the statutory right, but also stipulates that a request for a companion must be reasonable, explaining 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 somebody suitable and willing was available on site”.

Whilst statute therefore confirms that it is the request itself that must be reasonably made, very often, based on the ACAS code, employers will decline the actual choice of companion on the basis that they consider them to be unsuitable for some reason.

Two recent cases in the Employment Appeal Tribunal (EAT) have clarified that contrary to the Code, workers have an absolute right to have a companion of choice at a disciplinary hearing. All that is required is that the request itself is reasonable (i.e. not made at the last minute, for example).

The EAT have reconciled its decision with the ACAS Code, on the basis that employers have a safeguard, namely that the choice of companion must be in accordance with the class of people allowed under the statute itself, and that compensation may be low or nil in circumstances where there is a “wanton” choice of companion, for example, where an employer may have very good reason for not wishing that individual to attend. Indeed this was the outcome in the cases that the EAT were considering.

In light of these decisions, ACAS is actually consulting on changing the Code on the basis that it is itself at odds with the statutory wording.

Employees who are not permitted to be accompanied are entitled to a compensation award of up to two weeks pay. It is also important to bear in mind that unreasonable refusal to permit an individual to be accompanied could taint the fairness of a dismissal, which could sound in a higher award.

We are left with a degree of unsatisfactory confusion which will hopefully be clarified once the ACAS Code is updated. Employers will need to carefully consider reasons for declining a particular companion. Arguably now there is a greater risk in doing so, although in a commercial context this could still be a calculated risk worth taking in certain circumstances.

For help on this or any other employment matter, please contact Julian Outen, Consultant Solicitor at julian.outen@ashtonslegal.co.uk or by calling 01473 261324.