Worker’s right to be accompanied

Under the Employment Relations Act 1999, an employee who attends a disciplinary or grievance hearing which could result in a formal sanction, warning or disciplinary action has the right to be accompanied by a colleague or trade union official. Provided a request for accompaniment falls within certain guidelines an employer cannot refuse the request.

Bring a friend

A disciplinary or grievance hearing can be an uncomfortable experience for both employer and worker. A negative outcome can create a sense of unfairness which may lead to a lengthy appeals process. In order to reduce the likelihood of appeals, employers often encourage workers to be accompanied during the hearing. This can result in a more relaxed atmosphere where the worker is at greater ease. However, the statutory right only applies to being accompanied by a colleague or trade union official.  On occassion, perhaps where an employee does not have a colleague or trade union official to ask, it can facilitate the meeting by allowing someone else to attend.  In addition, in some circumstances, a person attending other than a colleague or trade union official could be considered to be a reasonable adjustment for an employee that falls under the Equality Act 2010 definition of disability.

Am I being unreasonable?

Until recently, the meaning of the words reasonable request had never been clearly defined or questioned. In fact, there was some dispute about whether the reasonable request referred to the request for representation, or the choice of representative.

In a recent case (Toal vs GB Oils Ltd) Mr Toal requested that a specific Trade Union representative should accompany him to a disciplinary hearing. GB Oils declined the request on the basis that the colleague selection was unreasonable, and Mr Toal was forced to select another colleague to accompany him. After the hearing Mr Toal was dismissed and he appealed the decision on the basis that his statutory right to be accompanied (by a colleague of his choosing) had not been met.

Smile & Waive

The employment tribunal ruled that by accepting the alternative colleague, under whose accompaniment the hearings were completed, Mr Taol had waived his statutory right to be accompanied by a colleague of his own choosing. However, a statutory right cannot be waived as it’s a fixed legal requirement. Mr Toal took his case to an Employment Appeal Tribunal. They concluded that there is no requirement that the request for a specific employee should be reasonable – only that the request to be accompanied should be reasonable, and in accordance with guidelines.

Where does that leave me?

Anyone dealing with disciplinary and grievance matters in an organisation should have an awareness of the key procedural steps which make the process fair.  These are set out in easy terms in the Acas Code of Practice 1.  Breach of this code could leave an employer open to an unfair (or constructive) dismissal claim.

Following a robust procedure, gives confidence to all parties that their rights are being met the result is a strong partnership. And a valued, happy worker is a more productive worker.

If you need guidance with your internal disciplinary procedures or just general HR advice, please contact us.

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