Call us on:  0808 172 93 22

Can I bring a friend?

16229690_m - CopySUMMARY: Employers are increasingly expected to be flexible when allowing employees/workers to be accompanied.

The right to be accompanied at a disciplinary hearing

Given the recent decision of the High Court (Stevens v University of Birmingham) which indicated that an employee should have been permitted to have a professional representative present at an investigation hearing and changes to the ACAS Code of Practice on Disciplinary and Grievance Procedures and the non-statutory guidance, employers are often left bewildered as to who the employee/worker should be permitted to bring with them to a disciplinary hearing.

The statutory right to be accompanied applies where the employee/worker is invited to attend a disciplinary hearing.  Disciplinary hearings for the purpose of this right are those hearings that could result in:

The right applies to capability as well as misconduct hearings.  It does not apply to investigatory meetings.

Choice of companion

The following is a summary of who can be a companion:

1. An individual employed by the trade union of which they are an official

The employee/worker does not have to be a member of the trade union to which the official belongs.

2. Any other official of a trade union

See immediately above.  This person has to be certified by the trade union as having the experience/training to act as the companion.

3. A work colleague

4. A person to support the employee in difficult circumstances

These difficult circumstances are limited and are likely to include:

5. A lawyer

There is no general right to bring a lawyer to a disciplinary hearing.  There may however be:

6. Any person specifically identified in a policy/procedure/contract of employment

Employers should always check to establish whether their own policies/procedures/contracts of employment provide for different types of companion.  For example: a family member, a legal representative or a friend.

A flexible approach

Employers should also note that an employee has a statutory right to ask for a meeting to be rescheduled if necessary in order for his or her chosen companion to attend as long as the alternative date suggested is within five working days of that proposed by the employer.

Employers are increasingly being called upon to permit employees and workers to bring along individuals who do not fall within the traditional companion category.  Whilst employers can reject an employee’s/worker’s choice of companion in some cases, employers should be aware that tribunals appear to be expecting employers to take an increasingly flexible approach to the persons permitted as companions.

Employers should take advice if they are unsure as to whether they should permit the person an employee/worker has asked to be accompanied by and should ensure their own policies are clear on this point.

Cases

Stevens v University of Birmingham [2015] EWHC 2300

Contact details

For more details about permitted companions for employees/workers at meetings please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice. 

Updated: by FG Solicitors
Call us on:  0808 172 93 22

CAN I BRING A FRIEND?

16229690_m - CopySUMMARY: Employers are increasingly expected to be flexible when allowing employees/workers to be accompanied.

The right to be accompanied at a disciplinary hearing

Given the recent decision of the High Court (Stevens v University of Birmingham) which indicated that an employee should have been permitted to have a professional representative present at an investigation hearing and changes to the ACAS Code of Practice on Disciplinary and Grievance Procedures and the non-statutory guidance, employers are often left bewildered as to who the employee/worker should be permitted to bring with them to a disciplinary hearing.

The statutory right to be accompanied applies where the employee/worker is invited to attend a disciplinary hearing.  Disciplinary hearings for the purpose of this right are those hearings that could result in:

  • a formal warning being issued;
  • the taking of some other disciplinary action.  For example, suspension without pay, demotion or dismissal; or
  • the confirmation of a warning or some other disciplinary action.  For example, an appeal hearing.

The right applies to capability as well as misconduct hearings.  It does not apply to investigatory meetings.

Choice of companion

The following is a summary of who can be a companion:

1. An individual employed by the trade union of which they are an official

The employee/worker does not have to be a member of the trade union to which the official belongs.

2. Any other official of a trade union

See immediately above.  This person has to be certified by the trade union as having the experience/training to act as the companion.

3. A work colleague

  • The work colleague will have the right to paid time off during working hours.
  • The work colleague must not be subject to any detriment or dismissed because they have acted as a companion.
  • The choice of the work colleague does not have to reasonable – the employee/worker can choose whoever they wish.  It used to be thought that if the work colleague was at a remote geographical location, an employer could veto the employee’s/worker’s choice, but this is no longer the case.

4. A person to support the employee in difficult circumstances

These difficult circumstances are limited and are likely to include:

  • a companion who can translate where English is not the employee’s/worker’s first language; and
  • a companion to assist where the employee/worker has a disability or has mental health issues.

5. A lawyer

There is no general right to bring a lawyer to a disciplinary hearing.  There may however be:

  • a right under the contract of employment; or
  • a right as a result of the Human Rights Act 1998 where the outcome of the disciplinary proceedings would have a “substantial influence” on a decision of a regulatory body (or similar) that could bar someone from their profession.  For example, the medical, legal or accountancy profession.

6. Any person specifically identified in a policy/procedure/contract of employment

Employers should always check to establish whether their own policies/procedures/contracts of employment provide for different types of companion.  For example: a family member, a legal representative or a friend.

A flexible approach

Employers should also note that an employee has a statutory right to ask for a meeting to be rescheduled if necessary in order for his or her chosen companion to attend as long as the alternative date suggested is within five working days of that proposed by the employer.

Employers are increasingly being called upon to permit employees and workers to bring along individuals who do not fall within the traditional companion category.  Whilst employers can reject an employee’s/worker’s choice of companion in some cases, employers should be aware that tribunals appear to be expecting employers to take an increasingly flexible approach to the persons permitted as companions.

Employers should take advice if they are unsure as to whether they should permit the person an employee/worker has asked to be accompanied by and should ensure their own policies are clear on this point.

Cases

Stevens v University of Birmingham [2015] EWHC 2300

Contact details

For more details about permitted companions for employees/workers at meetings please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.