Section 10 of the Employment Relations Act 1999 (ERA 1999) gives workers the right to be accompanied by a trade union representative or colleague where they:
- Are invited to attend a disciplinary or grievance hearing; and
- Reasonably request to be accompanied at the hearing.
Making a reasonable request
In the case of Toal v GB Oils Limited, a worker was refused his request for his first choice of companion at a grievance meeting. His claim for breach of section 10 of the ERA 1999 was unsuccessful in the Employment Tribunal.
The Employment Appeals Tribunal disagreed with this decision, and said the right to be accompanied was only limited by the reasonableness of the worker’s request. If a reasonable request for a companion is made, employers should allow it.
If an employer has concerns over the suitability of a companion (due to a history of disruptive behaviour, for example), then a refusal could be justified, but this should be discussed with the worker before the relevant disciplinary or grievance meeting.
Following this case, the ACAS Code was updated to provide guidance on when a worker’s request is “reasonable”, and what employers are required to do.
Refusal as a breach of trust and confidence
In Stevens v University of Birmingham, an employee of a university was invited to attend an investigatory meeting regarding serious allegations of misconduct. He requested to be accompanied by a representative of a professional defence organisation. The university refused, and this was considered unfair. It also amounted to a breach of the implied term of trust and confidence.
The Claimant had one contract relating to an academic role with the university, and another regarding a clinical role with the NHS Foundation Trust. The alleged misconduct related to issues governed by both contracts.
The Claimant would have been allowed his choice of companion under the Trust’s disciplinary procedure, but the university initiated proceedings, and their policy meant the Claimant could not be accompanied at all to an investigatory meeting.
The right to be accompanied will be dependant on whether a request to be accompanied is a reasonable one, and the courts have tended to make decisions based on what is fair in the interests of justice.
Anthony Fox, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor
