Workers have had the right to be accompanied at a disciplinary hearing by designated individuals since the implementation of the Employment Relations Act 1999 (ERelA). This right has proved fairly uncontroversial for some time, but recent developments have potentially led to an extension in the right, meaning that the issue may no longer be as straight forward as employers may think.  Importantly, a case decided last month held that it was a breach of trust and confidence to deny the employee his choice of companion, even though that companion fell outside the category of individual allowed by the legislation.

The right to be accompanied

The ERelA sets out the right for workers to be accompanied if they are required, or invited, to attend a disciplinary hearing, and the worker reasonably requests to be accompanied. In these circumstances, the employer must permit the worker to be accompanied by either a trade union representative/official, or a work colleague.  The worker does not have to be a member of the trade union and nor does the trade union have to be recognised by the employer. Provided the companion falls into one of these categories, the employer must allow the companion to attend. The case of Toal and another v GB Oils Ltd has clearly established that the choice of companion does not have to be reasonable, only the making of the request. The ACAS Code of Practice on Disciplinary and Grievance Procedures was also updated to reflect this decision.  In practice, therefore it is likely to be extremely difficult for an employer to now challenge the employee’s choice of companion, provided that they are a trade union representative/official or work colleague.

In the event that the worker’s chosen companion is unavailable at the time proposed for the disciplinary hearing, the worker has a right to suggest an alternative time within the following 5 days.

If an employer fails, or threatens to fail, to allow a worker to be accompanied, the worker may bring a claim in the employment tribunal within 3 months of the failure or threat. If the claim is successful, the tribunal must order the employer to pay up to 2 weeks’ pay (capped at £475 per week).

Role of the companion

The companion’s role is fairly limited.  The companion is entitled to address the disciplinary hearing and to confer with the worker, but there is no right to answer questions on behalf of the worker.  A companion cannot be subjected to any detriment, or be dismissed, because they have acted, or sought to act, as a companion.

Companions who are not a trade union representative or work colleague

For a long time, employers have been able to be fairly confident that they can legitimately refuse a worker’s suggestion for companion if they are not a trade union representative/official or work colleague, allowing them to reject requests for accompaniment by, for example, a family member or legal representative, at a disciplinary hearing.

In 2013, however, the EAT case of The Leeds Dental Team Ltd v Rose found that an employer had breached the implied term of trust and confidence in the employee’s contract of employment when it denied the employee the ability to be accompanied by an individual who did not fall within one of the statutory definitions.  The tribunal found that the proposed companion would not have prejudiced the hearing, and failing to allow him to accompany the employee, meant the employee had to attend the hearing alone and under duress.

In 2015, the ACAS Guide: Discipline and grievances at work was updated to make it clear that employers are free to allow a worker to be accompanied by someone who falls outside the statutory categories.  This is clearly designed to make employers consider alternative companions, but it does not impose any obligations to do so. The ERelA provisions still govern the issue.

However, a case has just been heard by the High Court which once again has found that a failure to allow an employee their choice of companion constituted a breach of trust and confidence.  In Stevens v University of Birmingham the employee, who was a clinical academic, had 2 contracts of employment – 1 with the university and 1 with the NHS Foundation Trust. Allegations of misconduct were made against the employee and he was invited to attend an investigation meeting. The university took the lead in the process and it was therefore its procedures, not those of the Foundation Trust, which were applied.  Under the university’s procedures, the employee was informed he could be accompanied to the investigation meeting by a trade union representative or university employee. The Foundation Trust’s procedures would, however, have allowed the employee to be accompanied by anyone of his choice.

The employee was not a member of a trade union, but was a member of the Medical Protection Society (MPS), a medical defence organisation.  Even if the employee had been a member of the relevant trade union, it would not have sent anyone to represent him as it has an informal arrangement with the MPS that the MPS assists with professional conduct issues.  The employee did not have any colleagues who were suitable to represent him – the employee spent a lot of time away from the university campus and had no regular contact with any employees outside his own laboratory. His laboratory colleagues could not assist as they were potential witnesses.

The employee requested that he be accompanied by an MPS representative who had been supporting him since the initial allegations were made. The university refused to permit this.  The employee claimed that this decision meant he would have to attend the meeting unaccompanied and that this was unfair.

The High Court found that the employee could not insist on the Foundation Trust’s procedures being applied. However, it then went on to consider whether the university’s refusal to allow the employee to be accompanied by his chosen companion was sufficiently serious to constitute a breach of the term of trust and confidence.   It had ‘ no hesitation’ in finding that it was. It said that the allegations against the employee were extremely serious, with potentially serious ramifications for the employee personally and professionally. The employee had been permitted the assistance of the MPS representative up to that point and the other individuals involved in the investigation process were being treated more favourably in their representation. The High Court also accepted that the employee was unable to ask another colleague to accompany him. It also found that it was outside the employee’s control that the university’s procedures, and not those of the Foundation Trust, had been applied. The High Court went on to find that there was no justification for the unfairness experienced by the employee and therefore that the unfair conduct was serious enough to undermine the relationship and amount to a breach of trust and confidence.  It made a declaration to that effect.

Future companions

The two cases which have arguably extended the right to be accompanied are very fact sensitive and it certainly cannot be said that employees now have an unfettered right to choose their companion.  However, employers do need to carefully consider whether it is appropriate to allow an employee to choose someone other than a trade union representative/official or work colleague to accompany them to a disciplinary hearing (or to other meetings allowing representation governed by contract) where there are particular facts or circumstances which suggest that the employee will be subject to unfairness if they are not permitted their choice of companion.  These may include very serious situations or circumstances where there is no suitable work colleague to accompany the employee or representation by a trade union is unfeasible or unavailable.