Right to be Accompanied (Employer Guide)

Employees and workers have the right to be accompanied to a disciplinary or grievance hearing at work. Employers are under a legal duty to follow a fair and lawful process when conducting such proceedings, which includes allowing the individual to be accompanied by a ‘relevant’ companion.

The following guide looks at the rules governing the statutory right to be accompanied, from when this right arises and who the employee is permitted to bring, and whether it is possible or advisable to refuse a request to be accompanied.

 

When does the right to be accompanied apply?

Under section 10 of the Employment Relations Act 1999, employees and workers have the legal right to be accompanied to any grievance meeting or disciplinary hearing that can result in disciplinary action against them. This action could include a formal warning, demotion or dismissal. The right also applies to appeal hearings, final redundancy meetings and meetings relating to long-term sickness absence where the employee could face dismissal.

The right to be accompanied does not apply to meetings deemed to be outside the formal disciplinary or grievance process, such as informal discussions or initial fact-finding or investigatory meetings – in other words, any meeting where the organisation is trying to gather evidence and learn more about the facts of an incident or issue that have led to the investigation. However, while there is no statutory right in these circumstances, it is good practice for employers to use their discretion and allow the individual to be accompanied if a reasonable request is made, for example, to provide moral support during what can be a daunting and stressful experience for the employee.

Employers should also, when considering such discretionary decisions relating to non-disciplinary meetings, consider whether refusing a request to be accompanied would breach the implied duty of trust and confidence.

 

Who has the right to be accompanied?

The right to be accompanied, as defined under s10 of the ERA 1999, applies to all employees and ‘workers’, including homeworkers, agency workers, part-time, temporary and casual workers, and those on short-term contracts. It also applies irrespective of the individual’s length of service with your organisation.

The individual should first submit a request to their employer in advance of the meeting, preferably in writing, to exercise this right and specifying who they wish to accompany them.

 

Who can accompany the individual?

The right to be accompanied means that an employee or worker can bring a ‘relevant person’ with them to a disciplinary or grievance meeting. This person is officially referred to as the ‘companion’.

By law, the employer is lawfully required to agree to the companion attending the meeting or hearing, provided they fall within one of the following permitted categories:

• A work colleague of the individual that is subject to the proceedings.
• A workplace trade union representative who is certified or trained in acting as a companion.
• An official employed by a trade union.

 

Trade union representatives as companions

If the employee requests to bring a trade union representative, the employee does not need to be a member of a trade union, nor does that union have to be recognised by the organisation. The employee can ask an official from any trade union to accompany them.

 

Work colleagues as companions

If the employee has asked to be accompanied by a work colleague, the employer is legally required to permit that worker to take time off during working hours for the purpose of accompanying their colleague, provided a reasonable request has been made.

Work colleagues attending as a companion also have the right to paid time off during working hours to accompany their colleague. In addition, they must not be subject to any form of victimisation, detriment or adverse treatment by reason of acting as a companion.

 

Do you have to allow companions outside the permitted categories?

Employers are not obligated under statute to allow anyone else other than those people listed above to act as companions. Legal representatives, relatives and friends are not permitted companions under the right to be accompanied. However, if an employee makes a request to be accompanied by an individual who does not fall within the approved classes of individuals, employers are advised to consider any such requests and whether discretion can and should be exercised depending on the circumstances and the nature of the request that has been made by the employee.

Employers should refer to the organisation’s disciplinary and grievance policies for guidance on the approach to take where such requests are received, and also the employee’s contract of employment may offer specific provisions for a wider range of people to accompany the employee to a disciplinary or grievance hearing. By way of example, some employment contracts might allow for a partner, spouse, legal representative or a professional support body to attend a meeting or hearing with a worker.

There may be other practical considerations to take into account. For example, if the employer is a small business, and it is not possible for the employee to be accompanied by either a colleague or a trade union representative, in the circumstances it may be appropriate to allow for a relative to attend not least to provide moral support to the employee. This is likely to be looked on favourably by a tribunal where the employee is facing potential disciplinary action or dismissal. In other circumstances, however, there may be concerns that the family member may disrupt the meeting.

Where the employee has a disability and the employer is under a duty not to discriminate unlawfully and to make reasonable adjustments, flexibility in agreeing to a companion that falls outside the approved classifications, such as a support or care worker, would be considered making a reasonable adjustment.

 

Companion availability

If the employee’s companion will not be available at the time proposed for the hearing, you should facilitate a reasonable postponement of the hearing to allow for the companion to be able to attend. To be classed as ‘reasonable’, the proposed new time should fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer.

Failure to accommodate a reasonable delay to allow for the companion to attend at a mutually agreeable time within five days of the original meeting date can give rise to a complaint to an employment tribunal. The failure may also be taken into account by a tribunal when deciding whether or not any subsequent dismissal was fair, even where the request from the employee was to delay for more than five days.

 

What can a companion do in the meeting?

Companions are permitted to do the following during the meeting:

• Taking written notes of the discussion on the employee’s behalf
• Presenting the case on the employee’s behalf, either verbally or in writing
• Summing up that case on the employee’s behalf, either verbally or in writing
• Confer with the employee during the course of the hearing

 
The companion is not permitted to:

• Answer questions asked of the employee
• Speak on the employee’s behalf in a way that hinders or prevents the employer from explaining their case, or prevents any other person at the hearing from making a contribution

 
Companions are expected to be professional and not to disrupt the discussion. They are not required to actively participate in the discussion and in many cases, the employee will ask the companion to simply take notes and be of moral support. If requested, you can permit the employee and their companion to confer before and during the meeting.

As part of a fair and lawful disciplinary process, ACAS guidelines recommend employers remind employees of the right to be accompanied when notifying of the disciplinary meeting. It is also advisable to include in the letter a summary of the permitted role and obligations of the companion, for example that they can must not answer questions that have been asked of the employee, although they may supplement or assist with answers in support; they can confer with the employee during the meeting but they should not disrupt or impede the progress of the discussion and they are not permitted to address the meeting if the employee does not want them to.

 

Can you refuse a request to be accompanied? 

An employer should not reject an employee’s choice of companion if they fall within one of the categories as set out in s.10(3) of the Employment Relations Act 1999.

Refusing an employee their right to be accompanied to a meeting where the employee faces disciplinary action could render the disciplinary or grievance process unfair, providing the employee with grounds to make a complaint. If an issue is taken to the employment tribunal, the judges will consider whether the employer followed the Acas Code of Practice and acted fairly and lawfully. Refusing the statutory right to be accompanied can result in compensation of up to 2 weeks’ pay.

However, the employee’s request to be accompanied has to be reasonable. As such, the employer may be able to refuse a request to be accompanied where they can show the initial request was not reasonable. For example, if the individual was involved in the incident itself or if the request is for an individual who does not fall under the permitted categories.

In addition, employees must not be subject to any form of victimisation, detriment or adverse treatment because they exercised, or attempted to exercise, their right to be accompanied.

 

Employees with under two years’ service

The right to be accompanied applies from day one of an individual’s employment. There is no minimum or continuous service requirement for the right to be accompanied to apply.

In practical terms, this can raise issues for employers in many scenarios, for example, when dealing with an employee on probation.

When dealing with employees with under two years of service – who in most cases are unable to bring a claim for unfair dismissal – employers may not always follow a full and complete disciplinary or grievance process. However, if the employee is called to a meeting where they potentially face disciplinary action such as dismissal, the right to be accompanied will apply given there is no minimum length of service requirement for this right to be applicable.

In such instances, depending on the circumstances of the case, it may be advisable to adjourn the hearing and rearrange to allow for the employee to make a request to be accompanied. This could, however, see the employee take sick leave, which would add to the cost and time implications of taking disciplinary action. Alternatively, you may opt to refuse any request by the employee to be accompanied during the meeting and proceed with the dismissal, which could result in a complaint being made to the tribunal for refusing the statutory right and a potential payout of up to two weeks’ pay compensation award to the employee. Taking professional advice on the facts of the case will help ensure you understand the legal risks and implications, and make a decision that is appropriate for your organisation.

 

Need assistance?

The rules on the right to be accompanied are not always clear-cut, particularly where employers can use their discretion to agree or refuse a request from an employee. Getting the process wrong can result in costly tribunal claims, which are best avoided by taking advice and ensuring you proceed with a course of action that reduces legal risk and is in your best interests.

DavidsonMorris’ employment law specialists offer guidance and support to employers in relation to all aspects of the right to be accompanied and wider disciplinary and grievance issues in the workplace.

We work with employers to support robust and fair procedures for dealing with grievances and disciplinaries at work, including drafting and reviewing disciplinary and grievance policies, delivering training to HR, managers and supervisors on how to handle disciplinary matters, and giving guidance on specific circumstances.

If you have a question or need help with a disciplinary or grievance issue, contact us.

 

Right to be accompanied: FAQs

Can an employee be accompanied to an investigation meeting?

There is no statutory right for employees to be accompanied to an investigation meeting but the organisation may permit this at its discretion, or under its own contractual provisions.

Does an employee have the right to be accompanied by a lawyer?

The right to be accompanied does not extend to legal advisers but the employee may ask their employer's permission to be accompanied by a solicitor in advance of the meeting. The employer is not under an obligation to agree to the request.

Who can an employee be accompanied by?

An employee or worker has a statutory right to bring a relevant person with them to a disciplinary hearing. A relevant person could include a work colleague, a workplace trade union representative or an official employed by a trade union. The employee is required to make a request to their employer in advance of the meeting.

How can DavidsonMorris help with disciplinary meetings?

The right to be accompanied is just one legal aspect of the workplace grievance and disciplinary procedures. DavidsonMorris' employment lawyers are on hand to advise and guide through all manner of grievance and disciplinary issues.

 
Last updated: 5 May 2023