Right to be accompanied — overviewThe right to be accompanied

Any worker who is required or invited by his employer to attend a disciplinary or grievance hearing has the right to be accompanied.

Who has the right

Anyone falling into the special broad definition of 'worker' has this right, irrespective of length of service. This includes employees, those under contracts personally to undertake work for someone who is not a client/customer, agency workers, home workers, and most persons in Crown employment.

Hearings at which the right applies

The right applies to all disciplinary hearings which could result in the worker receiving a formal warning, or the employer taking 'some other [probably disciplinary] action' with regard to the worker, and also to disciplinary appeal hearings. It also applies to all grievance hearings which concern the performance of a duty by an employer in relation to a worker. The statutory dispute resolution procedures were repealed with effect from 6 April 2009, subject to transitional provisions. The right also applies to any meeting held for the purpose of complying with the statutory dispute resolution procedures, in cases where they still apply.

The Acas Code of Practice on Disciplinary and Grievance Procedures also requires employers to allow employees to be accompanied at disciplinary and/or grievance meetings. This right broadly mirrors the statutory right, but the definition of 'grievance' in the Code of Practice is wider than the statutory definition. The Code of Practice defines grievances as 'concerns, problems or complaints that employees raise with their employers'.

Who may accompany

Workers may choose either another of the employer's workers, or an employed or 'certified' trade union official to accompany them. They may not choose any other type of person, unless there are exceptional circumstances.

The companion's rôle

During hearings, the chosen companion is entitled to put the worker's case, sum it up, respond to expressed views on the worker's behalf, and confer with the worker. Companions have no right to answer questions on behalf of the worker, address the hearing without the worker's consent, or prevent the employer or anyone else from properly participating in the hearing.

Requests to postpone hearings

The employer is obliged to agree to requests for a postponement of the hearing to accommodate a chosen companion, provided the request is reasonable and any alternative time/date proposed delays the hearing by no more than five working days.

Time off for companions

The employer is obliged to permit chosen companions (over whose working hours they have control) to take time off during working hours to accompany workers to hearings. The Acas code on trade union time off applies, and companions are entitled to be paid for time off.

Claims arising from the right to be accompanied

Potential claims may arise in relation to the right to be accompanied where:

• there have been failures to comply with the right

• companions have not been permitted time off, or not properly paid for it

• workers or their companions have been subjected to a detriment because they sought to exercise the right to be accompanied

• workers or their companions have been dismissed because they sought to exercise the right to be accompanied

Failures to comply with the right to be accompanied

Workers may bring a claim where the employer fails (or threatens to fail) to:

• permit the worker to be accompanied by an appropriate companion, or to

• allow a companion to exercise their rights at a hearing, or

• agree to a proper postponement request

There is a three month time limit. Successful claims will result in an award of up to two weeks' pay, capped by statute at £400 per week.

Where there is a failure to allow an employee to be accompanied, it may also amount to a breach of the Acas Code of Practice, where the Code of Practice is relevant to the proceedings before the tribunal. Breach of the Code of Practice does not, of itself, give rise to liability, but it may affect the level of compensation awarded to a successful claimant.

Claims by companions concerning time off

If an employer fails to permit a chosen companion to take time off, or to pay the companion properly for that time, the companion may bring a claim.

There is a three month time limit. Where a claim for failure to permit time off succeeds, the tribunal makes a declaration and may award such compensation as it considers just and equitable. For failures to pay for time off, the remedy is recovery of whatever amount ought to have been paid.

Subjecting workers or their companions to a detriment

Employers are prohibited from subjecting a worker to any detriment on the ground:

• that the worker exercised (or sought to exercise) the right to be accompanied

• that a companion of that worker exercised (or sought to exercise) a companion's legitimate rights at a hearing

• that the worker made (or sought to make) a proper request to postpone a hearing

• that the worker, whilst acting as a companion, exercised (or sought to exercise) a companion's legitimate rights at a hearing

There is a three month time limit from the act (or deliberate failure to act) complained of. This may be extended in the case of continuing acts, series of acts/omissions, or where it was not reasonably practicable for the claim to be presented in time. The statutory grievance procedure was repealed with effect from 6 April 2009, subject to transitional provisions. Where they continue to have effect, the statutory grievance procedures will normally apply, which may also cause an extension of the basic time limit.

Where a case succeeds, the tribunal must make a declaration, and may award such compensation as it considers just and equitable. This may include sums for injury to feelings, aggravated and/or exemplary damages, expenses and benefits. The duty to mitigate applies. There may be reductions for contributory fault.

Dismissing workers or their companions

Where a worker is dismissed on any of the grounds listed above in this Practice Note in the Subjecting workers or their companions to a detriment section, that dismissal will be automatically unfair, and the worker may bring an unfair dismissal claim in which he may be awarded any of the unfair dismissal remedies (reinstatement, re-engagement, basic award, compensatory award).

The normal unfair dismissal regime is adjusted in three important respects:

• the right to claim unfair dismissal for this reason extends to all workers, as defined (not just employees)

• there is no qualifying term of service required

• interim relief is available