Can you stop an employee being accompanied to a disciplinary hearing?
Under section 10 of the Employment Relations Act 1999 an employee is entitled to be accompanied at a disciplinary or grievance hearing by either (unless your procedures state otherwise):-
(a) a trade union official
(c) an employee’s work colleague
The companion must be a single person and is permitted to address the hearing on behalf of the employee and confer with the employee during the hearing. The companion is not permitted to answer questions on behalf of the worker.
In line with the legislation, the right to be accompanied would apply to those disciplinary hearings that could result in the issuing of a formal warning (verbal, written, final written or an extended final written warning) or dismissal. It also applies to hearings which could result in a disciplinary or grievance outcome being re-confirmed. These are most commonly referred to as appeal hearings.
Not just conduct issues
The right to representation by a companion would also apply in cases where the employee is being made redundant or where their employment is being terminated on the grounds of ill health or for any other substantial reason (SOSR). For the sake of clarity, as a general rule of thumb, any meeting or hearing where a formal outcome will be required from the employer, should allow the option for a companion to be present with the employee. This is considered to be best practice.
What about Investigation meetings?
Because an investigation is a pre-disciplinary process, there is no statutory right for an employee to be accompanied at this. However, employers are asked to check their handbooks to ensure that they do not provide employees with the right of a companion during an investigation meeting within their procedures.
Regardless of this, there will inevitably be cases where employees insist on being accompanied at an investigation meeting, and it will then fall to the employers to make a decision as to whether or not they are going to allow this. My advice on this would be to consider each individual case and decide accordingly, taking advice where required. Although there is no statutory right to a companion at an investigation meeting, the employer still has a duty to allow representation in certain cases in cases where it would deemed as being unreasonable to refuse.
For example, if you were intending to hold an investigation meeting with an employee who has or was suspected to suffer from learning difficulties and was therefore vulnerable, it would be reasonable in this case to allow the employee to be accompanied during an investigation meeting.
A practical piece of advice for employers is use the fact that there is no requirement to provide “reasonable notice” for an investigation meeting to your advantage. You can simply ask an employee to attend a meeting without prior notification. This will then eliminate the dilemma of an employee attempting to stall an investigation meeting. However, a stated above, always consider those special cases.
Not a legal process
It should be noted that employers will experience occasions where employees may request a solicitor to attend as their companion. Formal meetings are not a legal process, so if an employee requests for their solicitor to attend, then this should be strongly refused.
There may be exceptional cases, where it may be deemed reasonable and appropriate for an employer to allow somebody other than a trade union official or a work colleague to attend. Taking the example of an employee with learning difficulties again, if the employee requests their support worker to attend as they find it difficult to cope with stressful situations, then such a request should be given serious consideration by the employer.
While many employers will refuse any exception to the rule of only allowing either a trade union official or an employee’s work colleague, there is case law suggesting that this can be ruled unreasonable by the Employment Tribunal.
Leeds Dental Team Limited v Mrs D Rose Case No UKEAT/0016/13/DM
Toal v GB Oils Limited UK
In the Leeds Dental case the UKEAT ruled that it was unreasonable for the Employer to deny the Employee’s request to be accompanied to a disciplinary hearing by the ex-owner of the business.
The Toal case highlights that if an employee is refused the right to be accompanied by a companion of their choice they have to bring a claim for the breach of rights immediately, not after the fact. In any event, in the Toal case and subsequently Gnahoua v Abellio London Ltd, the level of award for declining the Employee their companion of choice was just £2, hardly a hill of beans.