By Zee Hussain, partner and Head of the Employment Department at Colemans-ctts (a trading style of Simpson Millar)
When does an employee have the right to be accompanied?The right to be accompanied arises when action is being contemplated that could result in a sanction being applied to the employee, their long-term employment could be placed at risk or there is a statutory right to be accompanied. Therefore, employees have a right to be accompanied in disciplinary and formal capability meetings, redundancy consultations, and meetings as part of the flexible working process amongst others. It applies to all employees - regardless of their length of service.
There is no right to be accompanied during informal meetings such as return to work interviews, investigation meetings, or ‘pep’ talks unless your contract gives this right.
What exactly do they do?
A companion can ask questions, help put the employees’ case forward, and take notes. However, a companion cannot answer questions on behalf of the individual or be disruptive. Companions who are rude and aggressive can be asked to leave, albeit it would be best to rearrange the meeting in those circumstances if the employee would prefer to be accompanied.
Who can accompany an employee?
The right extends to a work colleague or trade union representative or an official. The work colleague has to be willing and able to accompany the individual and be an employee of the same business. An employee can join a union privately and can therefore be accompanied by a Trade Union Official. This applies even if you do not work with a particular trade union over staff issues. However, the Official must have written permission from the Union to act on behalf of employees. If in doubt, simply can ask for their ID or check with the union.
In special circumstances, you can sometimes use your discretion to allow a family member to attend. For example, this may be when dealing with a very young worker or where a worker may be particularly vulnerable - e.g. an employee who is absent due to mental health problems.
My employee wants to be accompanied by someone who is on leave currently. Can I ask them to bring someone else?
If an employee’s preferred companion is on leave or otherwise unavailable, then there is a statutory right to delay the meeting by up to 5 days from the date of the original hearing. If a trusted colleague is not available for a couple of weeks due to a holiday, and the employee concerned would prefer not to involve others due to the sensitive nature of the situation, it may be reasonable to postpone for longer.
My employee wants his/her lawyer present, is this allowed?
The right to be accompanied does not generally extend to being represented by a lawyer. However, there are exceptions to this rule if the employers’ action can affect their overall career. For example, if a GP is being disciplined for clinical negligence. It is best to seek advice in those circumstances.
What if I ignore the rules and just issue the warning?
Recent case law indicates that a breach of the right to be accompanied can also undermine the implied term of trust and confidence between employer and employee as well as rendering any procedure unfair. This potentially means that the employee could claim breach of contract and/or unfair dismissal and a tribunal can award additional compensation in claims where an employee has not been given the right to be accompanied. Our advice is to be reasonable in all circumstances and ensure you treat each employee consistently.