Remember that it is a right to be accompanied, and not a right to be represented.
A company handbook should contain a disciplinary and grievance policy that sets out the procedures that should be followed and provides information on a wide range of people that could possibly accompany your employee. If there is no policy in place, then these are the people who can legally accompany:
- Trade Union Representative
- An Official employed by a Trade Union
Although you may not have a policy instructing who you should consider, it is still best practice to consider all requests.
Employees must request to be accompanied by one of the above for approval. The employer has no right to turn down a chosen companion if they fall into one of these three categories.
If appropriate, disabled employees can also have another companion such as their carer. It is the duty of the employer to ensure they accommodate accordingly.
You do not have a right to be accompanied by a lawyer unless the right is given in your employment contract. However, there is an exception to this where the outcome of the workplace disciplinary process could lead to a professional ban.
When Is It an Employee’s Right to Be Accompanied?
Under section 10 of the Employment Relations Act 1999, the employee has the legal right to be accompanied to any meeting or hearing when:
- A formal warning may be issued
- Disciplinary action such as dismissal or others such as suspension without pay or demotion
- Confirming appeals
The right to be accompanied applies to all ‘workers’, including homeworkers, agency workers, part-time, temporary and casual workers, and even those on short-term contracts. It also applies irrespective of the individual’s length of service with your organisation.
In regards to informal chats and fact finding / investigatory meetings – there is no right to bring a companion but an employer can still allow it. This can give employees the confidence that their issues are being taken seriously and are being treated fairly.
What should the Employee Consider when Choosing a Companion?
In making your choice, you should have the practicalities of any arrangements in mind. So, you should not pick a colleague from a geographically remote location when someone suitably qualified is available on site; nor to be accompanied by a colleague whose presence might prejudice the hearing or who might have a conflict of interest.
What Is the Companion’s Role?
To accompany during dismissal hearings that may result in:
- First and final warning
- Suspension without pay
During the hearing companions may:
- Have a say about the date and time of a hearing
- Speak to the disciplinary panel
- Discuss matters with you during the hearing
- Put your case forward
- Respond on your behalf to any view expressed at the hearing.
- Confer with you during the hearing.
- Question witnesses
Your companion CANNOT;
- Answer questions on your behalf.
- Speak to the hearing if you don’t want them to.
- Prevent your employer from explaining the case against you.
- Breach your confidentiality
It is an automatically unfair dismissal if your employer fires your colleague for accompanying you. It is also automatically unfair for you to be dismissed for asserting your right to be accompanied or for accompanying someone.
Wurkplace can support your business through the whole process from the creation and delivery of letters, to dealing with requests for accompaniment, to holding the disciplinary or advising.
We also has a free manager’s guide in the resource section.
Contact us by calling 0330 400 5490 or emailing email@example.com for more information.
Currently practising all the aspects of Human Resources including employee rights, discrimination, how to manage grievances and disciplinaries.