The Right to be Accompanied in Employment Law

Who has the Right to be Accompanied?

Need "Fresh Work and new not summary" of 750 words covering all sections using the attached file: Who has the right to be accompanied? What can a companion do in the meeting? Can you refuse a request to be accompanied?  Employees with under two years’ service Need assistance? Cite : Please refer to the Employment Relations Act 1999 as mentioned in the file.

Employees who have been asked to attend a disciplinary or grievance hearing that may result in disciplinary against them will have the right to be accompanied. Employers are under a legal duty to follow a fair and lawful process when conducting disciplinary proceedings.

The following guide looks at the rules governing the statutory right to be accompanied, from when this right arises and who the employee is permitted to bring, and whether it is possible or advisable to refuse a request 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 that can result in disciplinary action against them. This action could include a formal warning, suspension without pay, demotion or dismissal. The right also applies for example to the final redundancy meeting and meetings relating to long-term sickness absence whereas the employee could face dismissal.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.

The right to be accompanied does not apply to meetings deemed to be outside the formal disciplinary or grievance process, such as informal discussions or to initial fact-finding or investigatory meetings, in other words, any meeting where the organisation is trying to gather evidence and learn more about the facts of an incident or issue that have led to the investigation. However, while there is no right in these circumstances, it is good practice for employers to use their discretion to allow a worker to be accompanied if a reasonable request is made, for example to provide moral support during what can be a daunting and stressful experience for the employee.

Employers should also, when considering such discretionary decisions relating to non-disciplinary meetings, consider whether refusing a request to be accompanied would breach the implied duty of trust and confidence.While employees have the right to be accompanied by law, they should first submit a request to you in advance of the meeting, preferably in writing, to exercise this right and specifying who they wish to accompany them.

Who can the Employee Choose to Accompany Them?

The right to be accompanied means that an employee or worker can bring a ‘relevant person’ with them to a disciplinary or grievance meeting. This person is officially referred to as your companion.The rules state the employer is lawfully required to agree to the companion provided they fall within a certain class of individual:

A workplace trade union representative who is certified or trained in acting as a companion, or An official employed by a trade union.Work colleagues attending a disciplinary hearing as a companion has the right to paid time off during working hours to accompany their colleague. In addition, they must not be subject to any form of victimisation, detriment or adverse treatment by reason of acting as a companion.

This means employers are not obligated under statute to allow anyone else other than those people listed above to act as companions. Legal representatives, relatives and friends are as such, not permitted companions under the right to be accompanied.However, if an employee makes a request to be accompanied by an individual who does not fall within the approved classes of individuals, employers are advised to consider any such requests and whether discretion can and should be exercised depending on the circumstances and the nature of the request that has been made by the employee.

Employers should refer to the organisation’s disciplinary and grievance policy for guidance on the approach to take where such requests are received and also the employee’s contract of employment may offer specific provisions for a wider range of people to accompany the employee to a disciplinary or grievance hearing. By way of example, some employment contracts might allow for a partner, spouse, legal representative or a professional support body to attend a meeting or hearing with a worker.

There may be other practical considerations to take into account. For example, if the employer is a small business, and it is not possible for the employee to be accompanied by either a colleague or a trade union representative, in the circumstances it may be appropriate to allow for a relative to attend not least to provide moral support to the employee. This is likely to be looked on favourably by a tribunal where the employee is facing potential disciplinary action or dismissal. In other circumstances, however, there may be concerns that the family member may disrupt the meeting.In addition, where the employee is disabled and the employer is under a duty not to discriminate and to make reasonable adjustments, flexibility in agreeing to a companion that falls outside the approved classifications, such as a support or care worker, would be considered making a reasonable adjustment.

If the employee requests to bring a trade union representative, note that the employee does not need to be a member of a trade union, nor does that union have to be recognised by the organisation. The employee can ask an official from any trade union to accompany them.If the employee has asked to be accompanied by a work colleague, the employer is legally required to permit that worker to take time off during working hours for the purpose of accompanying their colleague, provided a reasonable request has been made.

If the employee’s companion will not be available at the time proposed for the hearing, you should facilitate a reasonable postponement of the hearing to allow for the companion to be able to attend. To be classed as ‘reasonable’, the proposed new time should fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer.Failure to accommodate a reasonable delay to allow for the companion to attend at a mutually agreeable time within five days of the original meeting date can give rise to a complaint to an employment tribunal. The failure may also be taken into account by a tribunal when deciding whether or not any subsequent dismissal was fair, even where the request from the employee was to delay for more than five days.

-Taking written notes of the discussion on the employee’s behalf

-Presenting the case on the employee’s behalf, either verbally or in writing

-Summing up that case on the employee’s behalf, either verbally or in writing

-Confer with the employee during the course of the hearing

Answer questions asked of the employee.Speak on the employee’s behalf in a way that hinders or prevents the employer from explaining their case, or prevents any other person at the hearing from making a contribution