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News added on 23.09.2019

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Right to be accompanied

How far does the statutory right to be accompanied extend?

A worker in New Zealand recently made the international news headlines when he hired a clown to take as his companion to a redundancy consultation meeting with his employer. The clown then proceeded to noisily make animal balloons during the meeting and mimed crying expressions when the redundancy paperwork was handed to the worker. Whilst the New Zealand employer may not have objected to this, in the UK how far does the right to a companion go?

The worker in this case said that he hired the emotional support clown to lighten the mood of the meeting. In the UK, there is no statutory right for a worker to be accompanied to redundancy consultation meetings, although Acas does say that it’s good practice to allow a companion to attend these meetings and many employers do permit workers to be accompanied as a matter of discretion.

Workers do, however, have a statutory right to be accompanied at a disciplinary or grievance hearing. This is a right to be accompanied by either a trade union official or a fellow worker of their choice. A trade union official includes both employed officials and representatives whom the union has certified in writing as having experience of, or as having received training in, acting as a worker’s companion. The union doesn’t have to be one that you recognise. If the companion is a fellow worker, you must also allow them to take paid time off work to act as a companion.

A disciplinary hearing is one which could result in: (1) a formal warning being issued; (2) the taking of some other disciplinary action, e.g. dismissal; or (3) the confirmation of a warning or some other disciplinary action, i.e. appeal hearings. It can include both misconduct and poor performance hearings, but it excludes initial investigatory meetings. A grievance hearing is a hearing which concerns the performance of a duty by an employer in relation to a worker.

To exercise their statutory right, workers must make a reasonable request to be accompanied. The Acas Code of Practice on Disciplinary and Grievance Procedures states that “what is reasonable will depend on the circumstances of each individual case. A request to be accompanied does not have to be in writing or within a certain timeframe. However, a worker should provide enough time for the employer to deal with the companion’s attendance at the meeting”. However, case law has established that the reasonableness requirement doesn’t extend to the actual choice of companion; if the companion is a trade union official or fellow worker, you can’t lawfully refuse the request.

Once they’re at the hearing, you must permit the companion to address it to put and sum up the worker’s case or to respond on the worker’s behalf to any view expressed at the hearing. They can also confer with the worker during the hearing. However, they don’t have the right to answer questions on the worker’s behalf or to address the hearing if the worker indicates they don’t wish them to do so. You can also prohibit them acting in a way that prevents you from explaining your case.

The statutory provisions set out the legal minimum. You can still allow a companion from outside a permitted category at your discretion. As you need to act reasonably, it’s wise to allow a worker with a mental disability to be accompanied by a family member or support worker (this may also be a reasonable adjustment for a disability under the Equality Act 2010), a young or vulnerable worker to be accompanied by their parent and a worker who doesn’t speak fluent English to be accompanied by an interpreter. That said, don’t allow the worker to bring a lawyer to the hearing unless they have a contractual right to do so or it’s a career-ending allegation, i.e. they’re likely to then be barred from practising their profession.

The worker’s statutory right is to be accompanied to disciplinary or grievance hearings, but not to redundancy consultation meetings or other meetings, by a trade union official or fellow worker. If the worker asks for someone else, act reasonably and consider the specific circumstances. The role of the companion is limited. They can’t answer questions on the worker’s behalf or address the hearing contrary to the worker’s express wishes.

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