December 23, 2013

Can workers be accompanied at hearings?

It’s absolutely fine for employees to be accompanied to a disciplinary or grievance hearing by a colleague or an accredited trade union representative – according to examples from recent cases.

In Toal and another v GB Oils Ltd a request by two employees to be accompanied by a specific individual at a grievance meeting was refused by the employer as it was felt the chosen companion would prejudice the case.  The employer had followed the guidance produced by ACAS and believed it was acting lawfully.

The ACAS Code of Practice on Disciplinary and Grievance procedures states that …”To exercise the right to be accompanied, a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing, nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.”

Disagreeing with the ACAS wording, the Employment Appeals Tribunal (EAT) confirmed that there is no statutory requirement for an employee’s choice of companion at a disciplinary or grievance hearing to be reasonable. Therefore an employer has no right to interfere with an employee’s choice of companion, unless that companion is not a trade union official or work colleague.

Late request to be accompanied

The word “reasonable” was also challenged in the case of Shone v Oxford and Cherwell Valley College. On the day of his disciplinary hearing, Mr Shone had requested a postponement. The employer refused. Mr Shone then sent a request to be accompanied at the meeting just 11 minutes before the scheduled start time. Mr Shone said he hadn’t been given enough notice to enable him to find a suitable companion and therefore the meeting should be postposed. The employer refused the request and held the meeting.  Mr Shone did not attend.

The employment tribunal found that such a late request to be accompanied was not reasonable and Mr Shone was given adequate time to arrange a suitable companion. Therefore the employer was right to deny his request.

Right to be accompanied at a short service dismissal meeting

In Collins v ILC Manchester Ltd t/a International Learning College the right to be accompanied at a short service dismissal meeting was questioned.

This employer did not allow an employee, who was still in his probationary period, to be accompanied at the meeting at which he was informed he was being dismissed.

The employer argued that it was not a “disciplinary hearing” as the outcome of the meeting had been pre-determined beforehand and therefore he was not entitled to be accompanied.

The employment tribunal disagreed stating that the employee could have put forward some compelling argument at the meeting that would have forced his employer to reconsider, or at least defer the decision to dismiss him. To that extent, the meeting could have resulted in some form of disciplinary action and Mr Collins should have been allowed a companion. The employee won the case.

In the case of Heathmill Multimedia ASP Ltd v Jones and Jones the employee had argued that they should have been given the right to be accompanied at a meeting to inform workers of their dismissal due to redundancy. The employment tribunal clarified that this meeting did not constitute a “disciplinary hearing” and therefore they had no legal right to be accompanied.

Further advice and support

If you would like additional information or advice on the right of your employees to be accompanied at certain meetings, please contact an HR Adviser on 0845 073 0240 for further guidance.

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