The right to be accompanied in disciplinary and grievance hearings

by Laurie Anstis on July 30, 2013

The right of an employee to be accompanied in disciplinary and grievance hearings arises from section 10 of the Employment Relations Act 1999 [note – the Employment Relations Act has been amended since the version on the legislation.gov.uk website] which says:

“(1) This section applies where a worker:

(a) is required or invited by his employer to attend a disciplinary or grievance hearing, and

(b) reasonably requests to be accompanied at the hearing.

(2A) Where this section applies, the employer must permit the worker to be accompanied at the hearing by one companion who:

(a) is chosen by the worker, and

(b) is [a trade union representative or another of the employer’s workers]

If the employer fails to comply with section 10(2A) then section 11 provides that the worker can make a complaint to the employment tribunal, which can then award up to two weeks pay (subject to the limit on a week’s pay in s227(1) of the Employment Rights Act 1996 – currently £450).

Allowing an employee to be accompanied at a disciplinary or grievance hearing had long been considered good practice, and the ACAS Code of Practice on Disciplinary and Grievance Procedures refers to this right before saying:

“15. To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on all the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing, nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.”

Section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires an employment tribunal to take into account any relevant ACAS Code of Practice, and section 207A permits a tribunal to increase the compensation awarded for some claims by up to 25%, where there has been an unreasonable failure by the employer to comply with a code of practice. This will most often be relevant where the employee is complaining of unfair dismissal and has been dismissed for misconduct.

So issues in relation to accompaniment at disciplinary or grievance proceedings can be the subject of a free-standing complaint under section 11 of the Employment Relations Act 1999, and may be relevant to other claims – particularly unfair dismissal claims where the employee has been dismissed for misconduct.

It is unusual for the appeal courts to have to deal with a failure to allow an employee to be accompanied at a disciplinary or grievance procedure, but the issue arose in Toal and Hughes v GB Oils Limited, decided earlier this month by the Employment Appeal Tribunal.

That case concerned a grievance hearing. The two employees raised grievances and requested to be accompanied at the grievance hearing by a named trade union official. The employer refused that request, and the employees then asked to be accompanied by a colleague, which the employer agreed to. The employees brought claims under section 11.

In a short judgment, a tribunal under Mr Justice Mitting found that the word “reasonably” in section 10(1)(b) applied only to the employee’s request to be accompanied and not to the identify of the chosen companion. It rejected an argument based on the ACAS Code of Practice that “reasonable” applied both to the request to be accompanied and the identity of the companion, holding that the ACAS code could not be used as an aid to construction of clear statutory wording.

The EAT went on to find that the fact that the employees had eventually gone ahead with a grievance hearing with a work colleague did not mean that they had waived any right to bring a claim about the initial refusal by the employer, but that on the question of compensation:

“in a case in which it is satisfied that no loss or detriment has been suffered by an employee, the Tribunal may well feel constrained (and in our view should feel constrained) to make an award of nominal compensation only, either in the traditional sum now replacing 40 shillings – £2 – or in some other small sum of that order.”

This case offers something for both employees and employers. On the employee side, the right to be accompanied is now a right to be accompanied by a companion of the employee’s choice, subject only to the terms of the Employment Relations Act 1999. The employer has no right to turn down a chosen companion on the basis that the choice of companion is unreasonable. On the employer side, in order to get any substantial compensation for a breach of the right, the employee will have to show a loss or detriment – which won’t always be easy, particularly where the hearing has gone ahead with a satisfactory replacement as a companion.

There are, though, some hidden depths to the decision.

First, as the ACAS code contemplates, there could be times when a chosen companion’s presence might “prejudice the hearing” – for instance, because they were the employee’s co-accused in an act of supposed misconduct. An employer faced with a such a request might have a difficult decision to make on whether they allow the companion or face the possibility of a claim for compensation by denying the request to be accompanied.

Second, the judgment contemplates that there might be circumstances in which it is unreasonable for the employee to request to be accompanied at all.  If the matter is serious enough for a formal hearing to be convened, then I’d have thought it would be serious enough for the employee to request to be accompanied, but if “reasonable” now means anything it means that there are some circumstances in which the very request to be accompanied could be considered unreasonable.

Third, it is unclear where this leaves the current ACAS Code of Practice. It has always been a document that has operated independently of the rights granted by section 10 of the Employment Relations Act 1999, and I imagine ACAS would be reluctant to amend it to take account of this decision. Even if the Code of Practice ought now to be read in an amended form, an employer has the comfort that the tribunal only has to “have regard to” the Code of Practice, and that there will be no uplift in compensation if the employer can persuade the tribunal that its failure to comply with the Code of Practice was reasonable.

Fourth, to my mind this is now unique as an employment right in respect of which  purely nominal damages might often be awarded. Even the lowest damages for injury to feelings in discrimination claims are likely to be several hundred pounds, and the notional award for loss of statutory rights in an unfair dismissal claim is also often a few hundred pounds, but we now have appellate authority that in appropriate circumstances a tribunal deciding a claim under section 11 “should feel constrained … to make an award of nominal compensation only”.

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