THE RIGHT TO BE ACCOMPANIED

[brothermagrew]

'Right to be Accompanied' in the spotlight
Published: 16th April 2009

The 'right to be accompanied' at disciplinary and grievance hearings is something that can cause difficulties and confusion for employers, even though it has been in place for several years. This has been further brought into focus with the introduction of the new ACAS code which reinforces this right. Making incorrect decisions can jeopardise the fairness of a dismissal or undermine a grievance process.

What is the right to be accompanied?
Where a worker is required or invited by his 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 'single companion'.

What is a 'hearing' in this context?
A disciplinary hearing is defined as a hearing the outcome of which could be the issuing of a formal warning, some other disciplinary action being taken, or confirmation of these sanctions (for example, an appeal hearing).

There is no right to be accompanied at informal discussions or counselling/advisory meetings unless the outcome of the meeting could be a formal warning or other action. Workers often ask to be accompanied at investigatory meetings. However, there is no right to be accompanied at these and you are entitled to refuse such a request unless your own policy or contract gives a right to be accompanied.

Sometimes problems may arise because a meeting may start out as one thing but changes into something else. If a meeting appears to be turning into a disciplinary hearing or a grievance hearing then it should be stopped and a formal meeting at which the worker will have the right to be accompanied should be arranged.

Strictly speaking for the original law on accompaniment, a grievance is a meeting at which the employer deals with a complaint about a duty that it owes to the employee, either under statute or common law.This raises arguments about accompaniment where the employee raises a complaint about something to which they have no legal or contractual right (such as a higher pay increase). However, the new ACAS guidance document which has been issued to accompany the ACAS code of practice says that it is good practice to allow a worker to be accompanied at any formal grievance, so any attempt to restrict accompaniment to any grievance hearing now carries a risk.

Who has the benefit of the right?
It is worth noting that it is not just employees who have this right but also the wider category of individuals who are classed as 'workers'.

What does 'reasonably request' mean?
In order to avail themselves of the statutory right to be accompanied the worker must make a 'reasonable request'. It is open to debate what is reasonable and the reality is that what is reasonable may vary for different employees in different circumstances. Generally, it would not be reasonable for an employee to insist on being accompanied by a companion if the presence of that person would prejudice the hearing in some way and it would not be reasonable to insist on being accompanied by an individual who might have a conflict of interest.

The new ACAS code says that "it would not be reasonable to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site".This does raise the concerning question for employers whether someone should be allowed to be accompanied by someone who needs to travel a long way if there is no-one else available or willing to do it locally (which will often be the case)? In reality any refusal of a particular request for accompaniment carries a risk which should be very carefully considered (and probably advice taken) before it is refused.

Who can the companion be?
The right is to be accompanied by a colleague, a trade union representative or an official employed by a trade union. However if you allow staff to be accompanied by someone other than these in your policies or contracts, you will be expected to comply with your own documents.
The employee does not have to be a member of a trade union nor does the union have to be recognised by you in order for a trade union representative to accompany a worker.

The right is to be accompanied by a sole companion and employers are perfectly entitled to refuse a request to be accompanied by more than one person. However, in certain cases it may be appropriate to allow an additional person to attend with the worker and the companion, particularly if either the worker or the companion has a disability and needs assistance at the hearing. In such a case the employer would be under a duty to make a reasonable adjustment. An example of this may be to provide or to allow the presence of a signer for a worker or companion who is hearing impaired.
Colleagues who are asked to accompany a worker at a grievance or disciplinary hearing are not obliged to agree to the request. However, if they seek reassurance that accompanying a colleague will not in some way count against them, that should be given.

In practice, often employees will request to bring a companion who does not fit into the legal categories. Sometimes they may request to bring their partner or a friend from outside of the organisation. Occasionally a request is made to bring a solicitor. Generally we believe it is best to limit the right to be accompanied. Partners can be the most emotive accompaniers. Solicitors can be nothing but trouble! However you should consider any request carefully before you refuse. Appropriate exceptions to this rule may arise for young workers or a worker who would be classed as disabled under the Disability Discrimination Act (in which case it may be a reasonable adjustment to allow an alternative companion).

Are lawyers allowed if the worker's career may be jeopardised?
A recent High Court case has also determined that in certain circumstances an employee may have the right to be represented by a lawyer at internal disciplinary hearings. This is where the outcome of the hearing could have very serious implications for the individual's future career. Whilst we believe the decision is likely to be limited to the very specific education procedures in which it arose, there is no doubt that employee's who wish to be accompanied by solicitors may raise it in arguing this with you.

In the particular case the Claimant was employed as a music assistant at a school.The school commenced disciplinary proceedings against the teacher for breach of trust as a result of the teacher having allegedly kissed a 15 year old pupil. The Claimant was dismissed.
The school was under a duty to report the Claimant to the Secretary of State for Children, Schools and Families to determine whether he should be entered on the register of those who are unsuitable to work with children. Clearly, the implications of such a report would have significant and far reaching implications for the teacher's future employment. Importantly this procedure does not have any further safeguards before such a decision is made and therefore has a more immediate and unchallengeable impact than, for example, the dismissal of a nurse whose ability to work will be determined following a process including a hearing before the Nursing and Midwifery Council.

The Claimant requested legal representation at the internal disciplinary hearing but the school refused. The Claimant brought a judicial review and alleged that the refusal to allow him legal representation at the internal hearings amounted to a breach of Article 6 of the Human Rights legislation, which is the right to a fair trial. One of the findings of the High Court was that because of the potential consequences of a dismissal in this situation the Claimant should have been entitled to be represented by a legal representative at the internal hearings. The Judge said 'in my judgment, the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust) taken together with the very serious impact upon the Claimant's future working life...... are such that he was, and is, entitled to legal representation at hearings before the disciplinary committee and the appeal committee.' The judge went on to say that on such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or work colleague (even if available) was not sufficient.

The school has been granted permission to appeal to the Court of Appeal and so we may not yet have the final authority on this question. In the meantime this case and arguments around it will arise where the outcome of a dismissal may have far reaching consequences on an employee's future career and you may exceptionally want to consider allowing legal representation at internal disciplinary hearings. Examples of situations where this may be appropriate could include disciplinary proceedings against those who work with children and vulnerable adults where the employer may have obligations to report the dismissal under the Protection of Vulnerable Adult legislation. In such situations it is worth taking legal advice.

Do companions get time off and pay?
If a worker is accompanied by a colleague then the colleague is entitled to take a reasonable amount of time off at his usual pay in order to accompany the worker. This time should cover the length of the hearing and it is good practice to allow additional time pre and post hearing.
A trade union official should be allowed to take a reasonable amount of time off with pay to accompany a worker at a hearing if both individuals are employed by the same organisation.

What is the role of the companion?
There is often confusion over the scope of the role of the companion. The companion does not have the right to answer any questions which are put to the employee. They do have the right to put forward representations on behalf of the employee and to sum up the employee's case. The scope of the companion's role is quite wide in practice. Sometimes, particularly with a strong union rep, it can be difficult to stop the companion responding to the questions asked, but it is worth setting out clearly at the start of the meeting what their role is and then reminding them of this if they are not adhering to this during the meeting.

Does the new ACAS Code of Practice on disciplinary and grievance procedures affect the right to be accompanied?
Since Monday 6 April 2009 most disciplinary and grievance procedures are subject to the new revised ACAS Code as the statutory dismissal and grievance procedures have been abolished (if in doubt about which applies do check with us as the rules are complex). The Code includes various references to the worker's right to be accompanied at disciplinary and grievance hearings.

Importantly, the Code states that when you notify an employee of a disciplinary hearing you should notify the employee of their right to be accompanied. This is the first time that employers have been required to tell an employee about the right (although in practice most employers do so and we would always recommend it). Strangely, the Code does not say the same thing for grievance hearing invites (but we would recommend it anyway).
When a Tribunal decides if a dismissal is fair, they must take into account the Code and if there has been any breach of the rules on accompaniment the risk is that these undermine the fairness of the dismissal. In addition, failure to follow the ACAS code may lead to an uplift on any compensation awarded to an individual of up to 25%. This could make a breach of the accompaniment rules very expensive if, for example, the employee was refused a valid accompanier at a grievance hearing and then succeeds in a discrimination claim (with a significant potential award including several years future loss as well as an injury to feelings award). This potentially goes well beyond the traditional limited remedy of two weeks' pay for breaching the rules. This is why the new ACAS code so significantly reinforces this right.

The rules which have been in place for some time also include a process for the worker to effectively rearrange the hearing to a reasonable time and date within 5 working days of the original hearing if the original date is unsuitable for the companion. However we have rarely seen this used in practice. However, the new ACAS guidance goes further and states that the employer should let the employee's companion be involved in agreeing the date and time of the hearing. This may result in more arguments that hearings should be arranged at the behest of the chosen companion and the timescales involved may give many of you real problems if relied upon by accompaniers and trade union representatives.

New problems?
Whilst the right to be accompanied seems straightforward at first glance, it can lead to problems in practice and the new ACAS code and guidance may increase those problems, the arguments that are raised, and the risk involved in any failure to comply fully with the rules, Code and guidance.

[Pat Ostman]

I think your informative posts are brilliant :)

Keep em coming so we can all learn our rights!

[norbert]

I think your informative posts are brilliant :)

Keep em coming so we can all learn our rights!

A mate of mine got somebody off as a UNISON rep for the County Council by one simple question i.e. " Is this a Investigation / Enquiry or a Disciplinary Hearing ? " , everything stopped .

He was later asked very nicely by certain managers not to stand again as rep as there were many very ambitious but mediocre managers baying for blood - bit like RM as he'd made a lot of enemies amongst those sad inadequate " individuals " .

Thanks again BrotherMagrew

[stokes11eg]

some years ago, we were told females have a right to have someone in at any meeting,if Manager was male. is this still the case?

[brothermagrew]

some years ago, we were told females have a right to have someone in at any meeting,if Manager was male. is this still the case?

Respecfully sister, I have not come across this before and am not suggesting that what you say is not true, but would ask that you or any other CWU brother and sister do as I had done in my original post, by performing a google search on RIGHT TO BE ACCOMPANIED and base what knowledge you accrue from that information.

[baldrick]

some years ago, we were told females have a right to have someone in at any meeting,if Manager was male. is this still the case?

In my MC females are usually accompanied in a meeting with a male manager.
The managers usually request this, to avoid any allegations being made against them.

[stokes11eg]

Maybe they're scared an Indignant female might slap them one!!!

[andy2007]

some years ago, we were told females have a right to have someone in at any meeting,if Manager was male. is this still the case?

In my MC females are usually accompanied in a meeting with a male manager.
The managers usually request this, to avoid any allegations being made against them.

So does that mean that I can insist on having a female Manager accompany me, if I'm going to a disciplinary meeting with a female Manager. In addition, to my Union Rep?
I don't feel the need to personally. But I do hate any kind of discrimination. Even if it's supposedly positive discrimination.

[norbert]

some years ago, we were told females have a right to have someone in at any meeting,if Manager was male. is this still the case?

In my MC females are usually accompanied in a meeting with a male manager.
The managers usually request this, to avoid any allegations being made against them.

one junior manager prior to privatization said he was warned never to be alone with any female staff as a lot of Charge Forms had been handed out . Whilst I wouldn't condone spurious and vexatious allegations , these macho managers were openly vindictive , underhand , corrupt , unprofessional , hostile and petty ; it was all to soften up and knock the stuffing out of people for privatization or " get people used to the new system " , definitely a union bashing agenda

Unfortunately :lfo & :cfo have taken an already backward RM back in time to that era with that arrogant , autocratic top down style but they are just hired hitmen .

A over zealous and literal minded H&B policy was introduced as the employer was the subject of too many embarrassing Industrial Tribunals . There was far too much childish politicking and dubious point scoring in the name of reinvention .

Worst example was somebody being overfamiliar and patting someone on the stomach saying she'd put on weight . It ended up with a happily married family man being arrested , charged resulting in a surreal Crown Court Case .

All the girls sent her to Coventry as crying wolf gave women who had been genuinely harassed and bullied which you'd be inclined to be sympathetic to a bad name .

The case collapsed as she tripped herself up left right and centre . She wanted impress her new boyfriend who came from a posh Christian family and reinvent herself as pure as the driven slush as she'd been carrying on with a Chargehand , the universally hated brother in law of the Personnel Manager . The same nepotism and corruption that's swept under the carpet with RM

It certainly wasn't a case of personalty as this " individual " didn't have one , just a company drone or useful stooge to make more Senior managers feel safer .
They transfered him away and he certainly didn't end up in court . His missus found out and chucked him out , took the kids and divorced him ; there was no sympathy whatsoever - what goes around , comes around

What disgusted staff was that no disciplinary action was taken against her for making a allegation in bad faith - all swept under the carpet by the idiots in charge to cover for " favoured sons " . Just like RM .

There was another case when a clerk put his hand on someone's shoulder , not appropriate & certainly over familiar , she turned on the waterworks on the blower just before midnight to a senior area manager .
When he came to work the next day , there was a policeman waiting for him as he'd been suspended - WTF ! , then the Police decreed that there was nothing they could charge him with .

The Union organized a petition and threatened to leak it to the press . The Area Director buckled as he knew this could reflect on him and all his managers hastening privatization so the suspension was lifted and common sense eventually prevailed with the pair being separated . It was hoped she'd be " promoted and transfered " , even her Policeman boyfriend admitted she could be " difficult " .

Unfortunately there has plenty of this disproportionate , neurotic and hysterical nonsense with RM's abuse of a corrupt H&B policy - a culture of fear

[stokes11eg]

I think most females know when 'there is no harm' meant,and when a sleazebag Manager,is trying it on!!!!!
Working in a mail dominated industry, you have to develop a thick skin!!!Me,once or twice, when I was young and 'Pretty' Ha.Ha. and fat old Doms were being suggestive, I just say 'rack off"!

[norbert]

I think most females know when 'there is no harm' meant,and when a sleazebag Manager,is trying it on!!!!!
Working in a mail dominated industry, you have to develop a thick skin!!!Me,once or twice, when I was young and 'Pretty' Ha.Ha. and fat old Doms were being suggestive, I just say 'rack off"!

goes from one extreme to another unfortunately - middle class do - gooders with no common sense , proportion and perspective feathering their own nests .

[DGP1]

I think most females know when 'there is no harm' meant,and when a sleazebag Manager,is trying it on!!!!!
Working in a mail dominated industry, you have to develop a thick skin!!!Me,once or twice, when I was young and 'Pretty' Ha.Ha. and fat old Doms were being suggestive, I just say 'rack off"!

I like what you did there

[stokes11eg]

It works sadly, or happily even a blind bat wouldn't 'proposition me now----,

[TrueBlueTerrier]

It works sadly, or happily even a blind bat wouldn't 'proposition me now----,

If you want to be - may I suggest this brewery

[brothermagrew]

Back to the subject matter an appeal at an Employment Appeal Tribunal in which a RMT Union official complained about the Right to be Accompanied and other matters, can be viewed at:

http://www.employmentappeals.gov.uk/Pub ... 112005.doc" onclick="window.open(this.href);return false;