SUMMARY: 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.
Stevens v University of Birmingham  EWHC 2300
For more details about permitted companions for employees/workers at meetings please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.
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This could happen to any business. In this case, it’s a recruitment company, Recruit4stars. The company was set up ten years ago and Ima Moneymaker started out as an administrative assistant. However, she turned out to have exceptional recruitment skills and quickly made her way up the ranks and was promoted to head recruiter two years ago. Ima handed in her notice a month ago and said that she wanted to move to pastures new.
Recruit4stars has just discovered that Ima has been offered a job by another recruitment agency around the corner, SuperRecruit. Ima is an avid user of social media and has over time added all her client contacts to her LinkedIn account. Recruit4stars is concerned that SuperRecruit will now be able to make use of these.
What can Recruit4stars do to protect its position in the market place?
Look at the contract of employment – are there enforceable post-termination restrictions?
Unfortunately, Recruit4stars gave Ima a basic statement of terms and conditions when she started with them in 2005. These were not updated when she was promoted and do not contain any post-termination restrictions.
If Recruit4stars had provided Ima with a contract of employment which included well-drafted restrictive covenants, it could have prevented her from working for a competitor for a certain period after her employment ended. Recruit4stars could have reminded her of these covenants and ultimately applied to the Court for an injunction to prevent her from working for SuperRecruit at the time she resigned.
Although there is a general rule against post-termination restrictions being enforceable because they are a restraint of trade, well-drafted restrictions taking into account all the circumstances of the business are likely to be enforceable.
Consider garden leave.
Ima has 10 weeks’ notice because that is the minimum she is entitled to under statute. Recruit4stars could have agreed a longer notice period with her when she was promoted, but it did not do so. It also did not make provision for putting Ima on garden leave.
If Recruit4stars had agreed a longer notice period, this would have enabled Recruit4stars to keep Ima out of the grips of her new employer for a longer period; garden leave would have allowed Recruit4stars to have taken her out of the market place for that time. This would enable Recruit4stars to build relations with her clients and candidates; confidential information may also start to become stale. Therefore, whilst it may still be possible to put Ima on garden leave, the shorter notice period means the benefit of so doing will not be as great as would have otherwise been the case.
Consider the LinkedIn account.
The law in relation to LinkedIn and contacts made during employment is a developing area. Unfortunately for Recruit4stars, the following do not assist them:
a) Ima set up her LinkedIn account on her own initiative and has a mixture of personal and business contacts.
b) Recruit4stars does not have a social media policy and has never given Ima direction about what it expects her to do with her LinkedIn account.
If Recruit4stars had:
a) introduced a social media policy which set out its expectations in relation to LinkedIn; and
b) included a clause in its contracts of employment setting out that any contacts made during the course of employment belonged to them,
it would be in a better position to prevent Ima from using those contacts.
As it stands, Recruit4stars would probably be able to dismiss her for gross misconduct if she tries to use contacts for the benefit of SuperRecruit while she is still employed by Recruit4Stars, but if she only carries out work for SuperRecruit when she is employed by them, there is little Recruit4Stars can do.
Three months later, SuperRecruit has increased their turnover by 25% and Recruit4stars has watched its turnover drop.
It could have been so different …
Recruit4stars would have been in a strong position when they discovered Ima’s plans if they had the following:
- Specially drafted post-termination restrictions, garden leave, intellectual property and confidentiality clauses in the contract of employment.
- A social media policy and/or contract clause relating to how contacts made through LinkedIn and Facebook are treated at the end of employment.
- A longer notice period.
Get in touch with us to make sure this does not happen to your business!
This case study is not based on any existing business and is a fictional scenario based on elements upon which we have advised over many years.
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HR & LEGAL AUDITING
Sickness Absence Management – Take Control and be on the Winning Side
Date: Wednesday 14th October 2015
Time: 8:00am – 10:00am
Venue: FG Solicitors’ Offices
Cost: Free – breakfast included
Ever felt that you are on the losing side when it comes to managing sickness absence?
Want to make your organisation a winner by taking control of absence management?
Join us to identify winning strategies which will allow you to:
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Learn how the new Fit for Work Service will operate alongside your absence management strategies.
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