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Right to be accompanied at disciplinary and grievance hearings

Posted by TonyBrownEmploymentSolicitor on July 11, 2013

When a worker is required or invited by their employer to attend a disciplinary or grievance hearing and the worker 'reasonably requests' to be accompanied at the hearing, the employer must allow the worker to be accompanied by a colleague, a trade union representative or an official employed by a trade union. However, as the next case shows, the requirement of reasonableness applies only to the request to be accompanied at the hearing; the worker’s request for a particular companion does not have to be reasonable and the employer has no right to reject the worker’s choice of companion. 

In the case in question, the Claimant told the employer that he wished to be accompanied to his grievance hearing by an elected official of Unite. The employer refused to allow the Claimant to be represented by the union and in consequence the Claimant was accompanied to the hearing by a co-worker.

The employment tribunal rejected the Claimant’s claim for compensation by being denied his statutory right to be accompanied to the hearing because the tribunal believed that the Claimant had waived the breach of his right by choosing another companion.

Allowing the Claimant’s appeal, the EAT made a number of important rulings:

  • the word 'reasonably' in the statute applies only to the request to be accompanied at the hearing. It does not also apply to the worker’s choice of representative.
  • by choosing another companion the Claimant did not waive his right to be accompanied by a companion of his choice.
  • the Claimant was not entitled as of right to 2 weeks’ pay as compensation for breach of his right.The statute provides for compensation linked to the loss or detriment suffered by the worker and it is not intended to punish the employer. If there was no loss or detriment, the tribunal should only award nominal compensation which the EAT suggested would be £2.

Comment

As a result of this ruling, the status of the ACAS Code of Practice which implies that the Claimant’s selection of companion should also be reasonable is unclear. The Code 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”

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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