Ask Us – Companion Compliance
We have someone who has been on long term sickness for over almost 3 years and I have taken this case on and I have started the long term/capability process with this individual. He turned up to the first meeting with two companions. One was his friend and one was his wife. He did not need them there to assist him as he is off with a bad back and shoulder as a result of a car accident. He did not notify us that he wished to have a companion but we agreed for them to attend the meeting. They did not really participate, only his wife to confirm dates of appointments and medication he is on, however his friend often made comments about the company and employees he used to know when he worked here 5 years ago. My question is how many companions should we allow in these meetings? Is there anything else we should consider in terms of his choice of companion?
First of all, well done for addressing this. All too often when an employee is off on long term sick they are forgotten, especially when managers/HR professionals dealing with the case leave the organisation. The employee continues to build up continuous service and the company benefits and employment rights that accompany that. If the employer has indeed forgotten the employee or treats them less favourably than other employees they risk a number of claims.
It’s actually a very timely question as Acas have just re-drafted their code of practice to address formal meeting companions in the light of some case law (Toal v GB Oils). The re-draft now makes it clear that the employee has the right to decide who is the companion within the description allowed whether the employer approves or not! (The re-draft is not published as yet, but a summary of the changes is available here.)
Basically employees have the right to be accompanied at formal meetings (disciplinary, grievance, dismissal including redundancy) by a colleague or trade union (TU) official. There is no right to be accompanied by anyone else – unless your policies say anything different. Often people will attempt to bring in a solicitor or family and you can make a judgement call on whether they should be allowed or not. I would normally say no to a solicitor as it is an internal matter and their presence automatically makes the matter more tense. A family member or friend could have a calming effect on the employee for a potentially difficult meeting so could be considered. Allowing non-colleague or non-TU companion could demonstrate you are acting reasonably although you do not have to do so. If you do apply an exception and allow a family member/friend to be the companion, make it clear that it is an exception and explain the rationale as to why you are allowing it. This means that future similar situations can also be assessed on their own merits rather than setting a precedent.
For a long term sick discussion (prior to any dismissal meeting), it is not classed as a formal meeting therefore there is no right of accompaniment (though again it is often good practice to allow it). If a single companion adds or has the potential to add value to the meeting then I would say go with it. More than one companion could well be too much for the employee to try to communicate with and it also upsets the balance of employer and employee. Based on what you have said, I’d be inclined to say one companion only. Perhaps have a telephone call with the employee to gently explain prior to your next meeting to prevent any conflict at the meeting itself.
At your next meeting make introductions at the beginning of the meeting and clearly set out the roles of those present:
eg You have ‘Fred’ as a notetaker and the employee has ‘Bob’ as their companion. The notetaker plays no active part in the meeting and role of the companion is to be a witness for the employee, take notes on the employees behalf and to provide support to the employee. They may not answer questions on the employee’s behalf.
This introduction is generally good practice for any formal meeting. See the Acas code of practice which sets role of the companion out quite nicely. If during the meeting the companion is not complying with their role, politely remind him/her and if it continues make an adjournment.
Hope this helps, keep us posted of how you get along.