The employee’s right to be accompanied at formal disciplinary and grievance proceedings was formally introduced in 1999 and might be thought to be well understood.  

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However, from time to time, queries are still raised as to whether an employee’s nominated accompanying companion is in fact permitted under the legislation.

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To go back to the legislation, the right to be accompanied extends to work colleagues, certified and/or trained trade union representatives and officials employed by a trade union. The individual right to be accompanied is not linked to their length of service or whether or not, in the case of a trade union representative the trade union is recognised by the employer for the purposes of collective bargaining.  Employees, part-time employees and members of the wider “worker” group are all entitled to be accompanied.  Crucially the rules about the right to be accompanied are therefore an essential part of following a fair and lawful process when conducting such proceedings. Unreasonable refusal of the right to be accompanied can lead to specific additional compensation of up to two weeks’ pay.  Of far more importance is the fact that it is difficult to see how any employer could demonstrate they had acted reasonably in dismissing an employee had they not complied with these rules.

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This does not mean that an employer cannot challenge an employee’s choice of representative.  For example, if the proposed accompanying colleague was a witness or even a participant in an incident of gross misconduct then it is likely to be inappropriate for them to act in this role. Conflicts of interest and confidentiality considerations could also justify a challenge to the employee’s choice.  Often a Trade Union Representative will be well known to the employer.  On occasion, the employer may seek confirmation from the parent trade union that the proposed representative meets the statutory definition.  Confirmation in the form of a letter or even an ID card can be sought.  Mere attendance at a Trade Union conference however does not a Trade Union Representative or Official make!

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Behind these seemingly straightforward rules, there are also a number of trickier situations.  Generally speaking, informal meetings, appraisals or investigatory meetings appear to be excluded from these rules however employers should still deal with all requests in a reasonable manner.  At the very least, I would strongly recommend employers afford the right to be accompanied to any redundancy consultations and appeals as well as meetings to discuss long-term sickness and health issues as well as any allegations of whistleblowing, harassment and bullying however ‘informal’ the approach. Equally, the inclusion of the right to be accompanied to other discussions such as the internal appraisal process should be firmly resisted.

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The inclusion of family members and or support workers is a particularly vexing issue.  On the face of it, neither are included within the statutory definition however consideration should still be given as to whether an exception should be made in a particular situation.  There is clear case law that when dealing with a disabled or other vulnerable employee, the employer should expand the right to be accompanied to include this wider group. The support of a family member or care worker could even be seen as a reasonable adjustment in the context of a performance review involving an employee with learning difficulties or mental health issues.  For completeness, the often-stated general prohibition upon legal representation is also not absolute but should be considered on a case-by-case basis.  

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Finally, the involvement of external third parties such as Trade Union Representatives may result in delays.  The legislation provides for the reasonable postponement of the meeting and an employee has the right to suggest an alternative date which is not more than five working days beginning with the first working day after the day originally proposed by the employer. Longer periods can however be needed if agreed.

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We are always happy to have an initial discussion – please do get in touch with Catherine Wilson to find out how FMGS can help you.