All employees have the statutory right to be accompanied to a disciplinary hearing. But what if someone selects a companion who has behaved badly at a previous hearing? Can you refuse an employee’s choice of representative?
The legal position
All employees, regardless of their length of service, have the statutory right to be accompanied to:
(1) a disciplinary hearing and any appeal; and
(2) a grievance meeting about the employer’s alleged breach of duty and any appeal.
In these situations an employee may select any one of the following to be their chosen companion:
• a fellow worker
• a trade union rep; or
• an official certified by a union as having experience or training in acting as a workplace companion.
The legal position is reflected in the ACAS Code of Practice which was revised in March 2015. When it comes to selecting a companion many employees want to pick someone “who knows what they’re talking about”. Indeed, some employers put their head in their hands when a particular name is mentioned. But what if a chosen companion has acted badly at a previous hearing? Would this give you the right to object to their attendance?
Bus drivers Mr Eleftheriou and Mr Bowani wanted Mr McConville, an accredited trade union representative for the RMT, as their companion at disciplinary hearings.
However, managers had been instructed not to allow Mr McConville to accompany employees at disciplinary or grievance hearings because of what was seen as unreasonable behaviour, such as talking over others, during hearings.
Mr Eleftheriou’s disciplinary hearing went ahead without representation and he was issued with two cautions.
Mr Bowani was also refused his request to be accompanied by Mr McConville at a disciplinary hearing, at which he was dismissed. Both men claimed that the employer breached their right to be accompanied.
The Employment Tribunal revisited binding case law that, as long as the choice is a trade union official or a fellow worker, an employer should not veto the employee’s choice, even when it considers the companion to be unsuitable.
In upholding their claims, the tribunal awarded each claimant two weeks’ wages.
This remains the case even if the employer considers the companion to be someone unsuitable based on previous experience(s). So, in other words, the employee may select whoever they wish, provided they are from one of the three permitted categories.
Tip – When a person attends as an employee’s companion ask them to sign a workplace companion confidentiality agreement. As well as setting out the extent of their role, it asks them to acknowledge those parameters. Whilst you can’t insist that they sign the agreement, it shows that you know exactly what they are, and aren’t, permitted to do as a companion and will be watching them closely.
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