When Acas amended its Code of Practice regarding the right to be accompanied, it was easy to see that it would mean a big shift in the way that employers manage disciplinary hearings.
The Employment Relations Act 1999 states that workers are entitled to be accompanied to a disciplinary or grievance hearing by a colleague or a trade union official. Previous guidance indicated that an employer could deny the employee to be accompanied by their chosen companion because the companion would create a conflict of interest, or was situated in a geographically remote location. This meant that employers had some say in who was involved in the hearing.
However, tribunal decisions over recent times have reshaped an employee’s entitlement and we are getting a much clearer feel for how tribunals will now decide whether the entitlement has been breached.
For example, a recent case regarding a bus driver shows us how the power has transferred to the employee in this situation. The bus driver was invited to a disciplinary hearing and informed his employer of his preferred companion. The employer refused the companion, on the basis that when he had accompanied other employees to a hearing, he had displayed ‘unreasonable’ behaviour e.g. talking over people. The hearing went ahead and the bus driver was unaccompanied.
The Employment Tribunal found that the bus driver’s right to be accompanied was breached. Permitted that the companion falls into one of the statutory categories i.e. colleague or trade union official, the employer cannot refuse their participation.
The maximum award for breaching the right to be accompanied is 2 weeks’ worth of the employee’s pay, subject to the statutory cap on a week’s pay. The current maximum is therefore £950. Employers must also remember that they will generally be required to reimburse the claimant for the fee that they paid to be able to bring the claim.
The choice of companion is not the only aspect of the right to be accompanied. There are several other rules involved and employers should always take advice on each specific instance.
For further clarification, please call our Advice Service on 0800 028 2420.