Your right to be accompanied to discipline and grievance meetings

The Right

Your right to be accompanied to a disciplinary or grievance hearing is contained in Section 10 of the Employment Relations Act 1999. Remember that it is a right to be accompanied, and not a right to be represented. The right to be accompanied is a statutory right which cannot be waived by any express or implied term of contract. Your employer must let you know of this right when you are invited to a disciplinary or grievance hearing.You have a right to be accompanied by a colleague, trade union representative or trade union official.  The ACAS Code of Practice on Discipline and Grievance Procedures recommends that your companion takes a full part in the proceedings. Although the ACAS Code is not legally binding, an Employment Tribunal will take into account whether your employer adhered to the provisions of the Code.

 

In Eleftheriou and another v Arriva London North Ltd [2014], the employment tribunal said it was a breach of the right to be accompanied for an employer to refuse to allow a trade union representative to act as a companion in any of its disciplinary or grievance hearings. Bus drivers Mr Eleftheriou and Mr Bowani wanted Mr McConville, an accredited trade union representative for the RMT, as their companion at disciplinary hearings. Arriva managers had been instructed not to allow Mr McConville to accompany employees at disciplinary or grievance hearings because of what was seen as his unreasonable behaviour, such as talking over others, during hearings. Mr Eleftheriou’s disciplinary hearing went ahead without representation and he was issued with two cautions.Mr Bowani was also refused his request to be accompanied by Mr McConville at a disciplinary hearing, at which he was dismissed. Both men claimed that the employer breached their right to be accompanied. The employment tribunal revisited binding case law that, as long as the choice is a trade union official or a fellow worker, an employer should not veto the employee’s choice, even when it considers the companion to be unsuitable. Mister Eleftheriou and Mr Bowani were each awarded two weeks wages as compensation for the breach of their right to be accompanied.

 

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DOCUMENTS, FORMS AND LETTER TEMPLATES

 

How do I exercise my right to be accompanied?

You must make a reasonable request. What is reasonable will depend on the circumstances of each individual case, although you can choose any colleague, trade union representative or trade union official (whether or not you are a member of that trade union).

You can change the person who is accompanying you so long as the person is a colleague, trade union representative or trade union official.

In making your choice, you should have the practicalities of any arrangements in mind. So you should not pick a colleague from a geographically remote location when someone suitably qualified is available on site; nor to be accompanied by a colleague whose presence might prejudice the hearing or who might have a conflict of interest.

Even though your request to be accompanied does not have to be in writing or within a certain time frame, it is a good idea for you to notify your employer in writing by providing the name of your companion , stating whether your companion is a colleague, trade union representative or trade union official.

 

 

When does the right apply?

The ACAS Code of Practice says;

Workers have a statutory right to be accompanied by a companion where

the disciplinary meeting could result in;

  • a formal warning being issued; or
  • the taking of some other disciplinary action such as suspension without pay, demotion, dismissal; or
  • the confirmation of a warning or some other disciplinary action (appeal hearings).

Skiggs v South West Trains [2005] was decided by the Employment Appeal Tribunal. The Employment Appeal Tribunal upheld a tribunal’s decision that an investigative interview regarding a grievance made by another employee against the claimant was not a disciplinary hearing at which the claimant had a right to be accompanied – even though the matters to be discussed could lead to some later disciplinary process against him. Whether a discussion or a meeting between management and an employee is a disciplinary hearing depends on the nature of the meeting itself and not on the label either or both parties had attached to it, or to its possible consequences. An interview that starts out as a preliminary factual enquiry may be transformed at some point into a disciplinary hearing. Whether that point of transformation has been reached is a question of fact and degree in each case. Although an employee has the right to be accompanied to disciplinary meetings, the right does not extend to informal discussions or investigatory hearings (but there is nothing to stop you from asking to be accompanied).

 

When does the right NOT apply?

You don’t have the right to be accompanied in informal discussions, counselling sessions or investigatory (fact-finding) meetings. The ACAS Guidance says that meetings to investigate an issue are not disciplinary meetings.

 

Who can I choose to accompany me?

Your employer has to agree to any companion as long as your companion falls into one of the ‘approved categories’ within the meaning of s10 (3) Employment Relations Act 1999, which include a fellow worker, a trade union representative, or an official employed by a trade union.

You can ask an official from any trade union to accompany you at a disciplinary or grievance hearing, whether or not you are a member of that union, or the union is recognised by your employer. You may have additional rights in your employment contract, or disciplinary policy to be accompanied by persons other than those listed in Section 10. These could be your partner, spouse or a legal representative. If you have the right to be accompanied by someone else, your employer cannot refuse to allow you to be accompanied by that person.

In the case of Toal & Anor v GB Oils [2013], GB Oils refused a request from two employees to be accompanied by a trade union official at a grievance hearing. The employer allowed a work colleague and another trade union official to act as companions instead.

The Employment Appeal Tribunal (EAT) rejected the employer’s argument that in the ACAS Code of Practice the word “reasonable” applied both to the request to be accompanied and the identity of the companion. The tribunal said that the word “reasonably” in s10(1) (b) applied only to the employee’s request to be accompanied and not to the identity of the chosen companion.

The EAT said that an employee’s request to be accompanied by a particular companion does not have to be reasonable, it just has to fall within the categories allowed by S10 (3) Employment Relations Act 1999. It said that just because the employees had eventually gone ahead with a grievance hearing accompanied by a work colleague did not mean that they had waived any right to bring a claim about the initial refusal by the employer.

On how much compensation the employees should receive, the EAT said;

“in a case in which it is satisfied that no loss or detriment has been suffered by an employee, the Tribunal may well feel constrained (and in our view should feel constrained) to make an award of nominal compensation only, either in the traditional sum now replacing 40 shillings – £2 – or in some other small sum of that order.”

What does this mean for you?

  • The right to be accompanied is a right to be accompanied by a companion of your choice so long as they fall within the categories of Employment Relations Act 1999.
  • Your employer has no right to turn down your chosen companion on the basis that your choice of companion is unreasonable.
  • In order to get any substantial compensation for a breach of the right, you will have to show a loss or detriment.

In The Leeds Dental Team Limited v Rose [2013], Mrs Rose was employed as a Practice Manager in a dental surgery. She did not record a colleague’s sickness absence and was invited to a disciplinary hearing. Mrs Rose asked to be accompanied at the hearing by a Dentist who used to own the practice. The Leeds Dental Team refused to allow her to be   accompanied because they felt that the former owner would support Mrs Rose. She had to attend the disciplinary hearing on her own and under duress.

Mrs Rose went off sick and ultimately resigned claiming constructive dismissal for various actions by her employer, including denying her right to be accompanied by the former owner. She said that these actions were breaches of the implied term of trust and confidence, which entitled her to resign.

The Employment Tribunal said that The Leeds Dental Team had acted unreasonably and breached the implied duty of trust and confidence in the way it handled the disciplinary process (among other things). The tribunal said that the Leeds Dental Team had no grounds for believing that the former owner would have prejudiced the proper conduct of the disciplinary hearing.

Can I be accompanied by someone who is not in the approved category?

Check your employment contract, and the disciplinary or grievance procedure at work to see if you can be accompanied by someone else. Also read The Leeds Dental Team Limited v Rose [2013].  You can be accompanied by a member of your family if your employer agrees, but you don’t have a statutory right to be accompanied by a family member or anyone who does not fall within the s10 categories.

 

Can I be accompanied by a lawyer?

You do not have a right to be accompanied by a lawyer, unless the right is given in your employment contract.  There is an exception to this where the outcome of the workplace disciplinary process could lead to a professional ban.

Article 6 of the European Convention on Human Rights, which gives the right to a fair hearing, has been used successfully in claiming a right to legal representation.

In the case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009]Dr Kunal Kulkarni was suspended pending investigation of a serious complaint by a female patient and was represented by the Medical Protection Society (MPS).  The Trust confirmed there would be disciplinary proceedings and that Dr Kulkarni had the right to be accompanied by a representative “not acting in a legal capacity”.

The MPS challenged this on the basis that the Trust had the discretion to allow legal representation where the complexities and potential seriousness of the case were such that the discretion ought to be favourably exercised. The Trust said no. Dr Kulkarni made an application to the High Court for a declaration that the Trust was acting unlawfully and in breach of contract by refusing to allow him legal representation at his disciplinary hearing.

The High Court said that there was an express term in the Trust’s contractual disciplinary policy which prevented legal representation, so there was no room for an implied term providing a discretionary right. It also said that Article 6 of the European Convention on Human Rights (ECHR), which covers the right to a fair trial, was not relevant in disciplinary proceedings.

Dr Kulkarni appealed and the Court of Appeal agreed with him. The Court of Appeal said that he was contractually entitled to be represented by a lawyer at his disciplinary hearing.  The Court said that Article 6 ECHR is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found to be proved, he or she will be effectively barred from employment in the NHS. The Court also said that article 6 implies a right to legal representation in circumstances where an employee is facing what is, in effect, a criminal charge and where the consequences can be very serious.

What does this mean for you?

  • If you are facing serious, career-threatening disciplinary charges, then you are entitled to a disciplinary hearing that complies with article 6 ECHR, including the right to legal representation subject to the decisions in the following case.

In The Governors of X School and others v R on the application of G [2010] the parents of a 15 year old boy complained that he had been kissed by his 22 year old school sessional music teaching assistant (G). After an inconclusive Police investigation, the school held a disciplinary hearing and dismissed G. They also referred his case to the Independent Safeguarding Authority (ISA) with a view to him being barred from working with children. The referral to the ISA could result in G being placed on the Children’s barred list. Effectively an end to his teaching career.  G sought to be represented by his solicitor and was successful on judicial review to the High Court and at the Court of Appeal.

G was not so successful in the Supreme Court though. The Court ruled by a majority that article 6 rights were not available at a school’s internal disciplinary hearing and the man was therefore not entitled to legal representation. This was because the result of the hearing would not have a substantial influence on the secretary of state’s decision whether to place the man on the list of people barred from working with children. The Independent Safeguarding Authority (ISA) was obliged to make its own independent judgment, and would not rely on the findings of the school.

What does this mean for you?

  • Article 6 of the European Convention on Human Rights, applies in internal disciplinary proceedings only if the decision will have a “substantial influence” on future proceedings which are likely to have an impact on your right to work in your chosen profession.

How can my companion help me?

The role of your companion is laid out in S37 Employment Relations Act 2004.  If your companion is a colleague, they are allowed to take paid time off work to accompany you. The paid time off should cover the disciplinary hearing itself, and also allow time for your companion to update themselves about the case, and have discussions with you before and after the hearing.

Your companion CAN;

  • Have a say about the date and time of a hearing
  • Speak to the disciplinary panel
  • Discuss matters with you during the hearing
  • Put your case forward
  • Respond on your behalf to any view expressed at the hearing.
  • Confer with you during the hearing.
  • Question witnesses

Your companion CANNOT;

  • Answer questions on your behalf.
  • Speak to the hearing if you don’t want them to.
  • Prevent your employer from explaining the case against you.
  • Breach your confidentiality

What happens if my companion cannot attend on a given date?

If your companion cannot attend at the time put forward by your employer, then your employer must postpone (adjourn) the hearing to another time within 5 working days of the original date.

If your employer does not re-arrange a hearing to a reasonable date you can complain to the Employment Tribunal. The Employment Tribunal can award you compensation of up to two week’s pay.

 

Can I get in trouble for asking to be accompanied or accompanying someone at work?

Under Section 12 Employment Relations Act 1999, your employer cannot subject you to any detriment, neither must there be a deliberate failure to act because you insisted on your right to be accompanied, or accompanied a colleague. It would be an automatically unfair dismissal if your employer fires your colleague for accompanying you.

It is automatically unfair for you to be dismissed for asserting your right to be accompanied or for accompanying someone. If you are dismissed or subjected to a detriment you would have a claim in the Employment Tribunal.

What can I do if  my employer will not or did not allow me to be accompanied?

Under Section 10 Employment Relations Act 1999, you can complain to the Employment Tribunal if your employer denies you your right to a companion. The Employment Tribunal can award you compensation of up to two week’s pay.

Section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires an employment tribunal to take into account any relevant ACAS Code of Practice, and section 207A permits a tribunal to increase the compensation awarded for some claims by up to 25%, where there has been an unreasonable failure by the employer to comply with a code of practice.

Sometimes an employer will say “ It is not a disciplinary meeting, it’s just a fact-finding meeting so you don’t need to bring anyone”. They then go on to impose disciplinary sanctions. This is wrong, and such an employer would be in breach of the Employment Relations Act (1999).

The Employment Tribunal would consider your employer had not followed a fair procedure if you are not allowed to be accompanied at a disciplinary meeting prior to being dismissed. This would lead to a finding of unfair dismissal.

 

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Disclaimer

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication.

Further specialist advice should be taken before relying on the contents of this publication. You can send an e-mail to thelawyers@employeerescue.co.uk for such specialist advice if required.

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