Business Law: Julian Outen explains the rights of employees to a ‘companion’

Julian Outen of Ashton KCJ.

Julian Outen of Ashton KCJ. - Credit: Archant

Employees have a statutory right to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing, and may be entitled to compensation if an employer denies them that right.

The ACAS Code of Practice on discipline and grievance currently underlines this right but also stipulates that a request for a companion must be reasonable, stating that it would not normally be reasonable for an employee to insist on being accompanied by someone whose presence would prejudice the hearing, or to ask to be accompanied by a companion from a remote geographical location if somebody suitable is available on site.

While the statute confirms that it is the request itself that must be reasonably made, very often, based on the ACAS code, employers will decline the choice of companion on the basis that they are unsuitable for some reason.

Two recent cases in the Employment Appeal Tribunal (EAT) have clarified that, contrary to the code, workers have an absolute right to have a companion of choice at a disciplinary hearing. All that is required is that the request itself is reasonable (for example, that it is not made at the last minute).

The EAT has reconciled its decision with the code on the basis that employers have a safeguard, in that the choice of companion must be in accordance with the class of people allowed under the statute itself, and that compensation may be low or nil where there is a “wanton” choice of companion, where an employer may have very good reason for not wishing that individual to attend.

In light of these decisions, ACAS is actually consulting on changing the code on the basis that it is itself at odds with the statutory wording.

There are two issues for employers to bear in mind here. Firstly, if an employee is not permitted to be accompanied, they are entitled to a compensation award of up to two weeks pay. Secondly, unreasonable refusal to permit an individual to be accompanied could taint the fairness of a dismissal.

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We are left with a degree of confusion which will hopefully be clarified once the ACAS code is updated. Arguably there is now a greater risk for employers in declining a choice of companion but, in a commercial context, this could still be a risk worth taking in some circumstances.

: : Julian Outen is a consultant solicitor at Ashton KCJ.

This article is for general information purposes only and does not constitute legal or other professional advice. We would advise you to seek professional advice before acting on this information.