The right to be accompanied comes under the spotlight

The right to be accompanied at disciplinary, grievance and other statutory meetings is enshrined in statute and in ACAS Guidance. However, the right to be accompanied has been put under the spotlight in a series of cases which have considered the extent to which a worker can be legally represented and whether it is a breach of human rights to refuse.

When does a worker have the right to be accompanied?

Generally speaking, a “worker” (not just employees therefore) has the right to be accompanied at disciplinary or grievance meetings. This also extends to meetings required as part of a statutory process, for example, flexible working, retirement or time off to train. There is no right to be accompanied at informal discussions or investigatory meetings unless employer policies allow. To take advantage of the statutory right, the worker must make a 'reasonable request'. However, it is typical for an employer to remind the worker of their right to bring a companion in an invitation letter.

Who can the companion be?

The statutory right is for workers to be accompanied by a colleague, a trade union representative or an official employed by a trade union. It must also be reasonable to require that person to attend. It would not be reasonable for a worker to request being accompanied by someone who may prejudice the hearing; for example, asking a CEO if they may become involved at an appeal stage. Tribunals expect employers to be reasonable which will ultimately depend on the facts of each case.

Bringing a Lawyer?

Two recent cases, both involving public sector employers - one a teacher, one a trainee doctor - have highlighted the use of lawyers at disciplinary meetings. In both cases, the employees faced serious and potentially career threatening allegations. Here the employees wished to bring a lawyer with them to an internal disciplinary meeting but were refused by their respective employers. The Court of Appeal in both cases ruled that in certain circumstances, an employee should be afforded the opportunity to bring legal representation at a disciplinary meeting and it may breach their human rights to refuse.

What Should Employers Do?

In the majority of disciplinary, grievance or other statutory meetings it will be reasonable for a worker to bring a work colleague or trade union representative. However, particularly in the public sector, there may be occasions where simply bringing a work colleague is not enough to ensure the worker has fair and adequate representation. This is true where the allegations or the possible sanction affects a person’s ability not just to work but to continue in their profession.

Employers should consider a worker’s request to bring someone other than that prescribed and take legal advice. Keep a record of the decision so that if challenged, there is evidence of the decision making process.

Whatever the decision, remember: merely following the minimum requirements of the law will give no room for manoeuvre in the event of a dispute; working “above the legal line” can give employers additional confidence that their actions will be seen as fair and credible.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the
accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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