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Any employee who finds themselves facing the unpleasant experience of disciplinary or grievance procedures now has the right to be accompanied by another person in order to receive advice and support.
It is a right that exists for all workers, no matter how many employees a firm has or whether there is trade union recognition at the firm.
The right to be accompanied came into force on 4 September 2000 under sections 10-15 of the Employment Relations Act 1999.
The right to be accompanied applies to workers and not just employees. It therefore covers casual, temporary and agency workers too.
It applies when:
A worker is required or invited by his employer to attend a disciplinary or grievance hearing.
The worker reasonably requests to be accompanied at the hearing.
The right does not apply where:
There is no invitation or request to attend by the employer (in other words when it is initiated by the employee).
It is first and foremost important to realise that there is no express obligation on an employer to have a disciplinary or grievance, nor to implement a procedure for hearings if there is not already one in place.
However, the employment appeal tribunal in the case of W A Goold v McConnell (1995) said that there was an implied term in contracts of employment "that the employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have".
The request must be reasonable. According to the code of practice what is reasonable will depend on the nature of the disciplinary offence or grievance, the nature of the hearing, the stage of the procedure, and the circumstances of the worker. The code states that it would not normally be necessary for a worker to assert the statutory right to be accompanied at an informal disciplinary interview or an informal meeting held to resolve a grievance.
However, this raises the question of whether what is "necessary" is the same as what is "reasonable". It should be argued that any meeting or interview which could lead to a suspension from work is a hearing which could result in a formal warning.
A disciplinary hearing is defined in the Act (section 13(4)) as a hearing which could result in:
the administration of a formal warning to a worker
the taking of some other action in respect of a worker
the confirmation of a warning issued or some other action taken.
While it could be said that most steps taken by an employer could result in a warning or some other action, the code of practice states that accompaniment is not normally necessary at an informal interview.
A grievance hearing is defined (section 13 (5)) as a hearing which concerns the performance of a duty by an employer in relation to a worker. According to the code this means a duty arising from statute or common law. So grievances arising out of day to day friction between fellow workers may not involve a duty on the employer.
If the friction, or indeed any other problem, is reported to management, then this could impose a duty on the employer to take some action, since a failure to do so could result in a breach of the employer's duty of trust and confidence.
Issues of harassment and bullying also impose duties on employers, and so involve a duty on the part of the employer.
Issues of equal pay involve a duty, but a dispute about a pay rise would probably not, since there is normally no legal duty on an employer to award a pay rise.
The right is to be accompanied by someone who is:
chosen by the worker
a trade union official employed by the union
a lay official reasonably certified in writing by the union as experienced or having received training in acting as a companion in hearings
a fellow worker.
The worker not the employer has the right to choose who will accompany them and there is no requirement that the lay union official is employed by the same employer. If there is a recognised trade union, it would normally be appropriate to be accompanied by an official from that union.
Certification by the union of experience or training may take the form of a card or letter from the union stating that the individual is capable of acting as a worker's companion.
If the worker's chosen companion is not available at the time fixed for the hearing, then the worker has the right to postpone the hearing to another time which is:
reasonable
within five working days of the first working day after the date proposed by the employer.
A companion at a hearing is permitted to:
address the hearing, but not to answer questions on behalf of the worker
confer with the worker during the hearing
ask questions (of the employer and worker) at the hearing
participate as fully as possible in the hearing
they should also be permitted reasonable time to confer privately with the worker, either in the hearing room or outside.
A companion at a hearing has the right to take paid time off work during working time, providing they are employed by the same employer.
The time taken should also cover time for private discussions with the worker. But there is no express right to time off to prepare for the hearing, other than the right to confer with the worker before and after the hearing.
If the companion is a lay official employed by another employer, then there is no automatic right to time off, and the hearing may have to be arranged in their own time.
A worker can complain to an employment tribunal if an employer has failed, or threatened to fail, to comply with the right to be accompanied.
The remedy is up to two weeks' pay, limited to the statutory limit (currently £230).
There is no award in circumstances where the worker is dismissed and brings an unfair dismissal case if the tribunal has already awarded supplementary compensation because the employer did not allow an internal appeal against dismissal to proceed.
A failure to allow a worker to be accompanied where the worker is then dismissed, does not amount to an automatically unfair dismissal, but in practice it will make a finding of unfair dismissal likely.
Any complaint to a tribunal must be lodged within three months of the date of the failure by the employer to allow representation, or the threat of failure. A tribunal has the discretion to allow late claims if it was not reasonably practicable for the complaint to be presented within three months.
Both the worker and the companion are protected against detriment or dismissal for exercising their rights under the Act. This applies whether the companion is an employee of the same employer or not.
If the worker or companion are dismissed for exercising their rights, then the dismissal is automatically unfair. There is no qualifying period of employment required. This right extends to workers, whether or not they are employees.