Guidance for Employers
The Right to be Accompanied;
When Does it Apply?
We’ve had a lot of cases recently when questions have arisen regarding an employee’s right to be accompanied at various meetings. Given that it’s something that has come up quite frequently we thought we’d take this opportunity to provide you with some more information on this right and how it works.
The Right to be Accompanied
When Does it Apply?
7 February, 2017
by Kristina Lukaviciute
We’ve had a lot of cases recently when questions have arisen regarding an employee’s right to be accompanied at various meetings when trying to address or resolve employee issues.
Given that it’s something that has come up quite frequently we thought we’d take this opportunity to provide you with some more information on this right and how it works.
1. An Overview of the Right to be Accompanied
Employees have a statutory right to be accompanied at a disciplinary or a grievance hearing. This statutory right is effective without any length of service requirement.
The right though is limited to the companion being
- a fellow worker,
- an official employed by a trade union, or
- a workplace trade union representative.
The companion can:
- address the meeting,
- respond on the employees’ behalf to views expressed at the meeting and
- confer with the employee during the hearing
- but they are not allowed to answer on the employees’ behalf.
The right is triggered when an employee makes a reasonable request to be accompanied. ACAS, however, advises employers to remind employees of their right to be accompanied when issuing them with the official invitation letters to either a disciplinary or a grievance hearing.
The right to be accompanied does extend to the final meeting in a redundancy consultation process as one outcome of that meeting could be dismissal.
2. Some Common Employee Requests Regarding being Accompanied
Just to be very clear, there are a number of common requests that employers receive regarding this right. In most cases:
- Employees are not able to bring a friend, relative or solicitor to any meeting.
- Employees do not have the right to be accompanied at a meeting that is outside of the formal disciplinary or grievance process. For example, if you want to speak to someone about performance but you aren’t considering taking action that is set out in your disciplinary process (first written warning etc.) then the right does not apply.
- You don’t have to wait forever for the companion to be available (although you do need to be reasonable).
3. Dismissal with Under Two Years’ Service
Quite often if an employee has under two years’ service, depending on what the employment contract states, they can be dismissed without following the full disciplinary process. Whilst this is not best practice, sometimes this is the best way forward for the business and the legal framework allows for it, as employees with under two years’ service cannot claim unfair dismissal.
So if an employer does not need to follow the full disciplinary/dismissal procedure when it comes to giving warnings or dismissing someone with under two years’ service – what happens with the employee’s right to be accompanied?
It is important to remember that the right to be accompanied is triggered when there is a disciplinary hearing and is a right that exists regardless of an employee’s length of service. A dismissal meeting for someone with under two years’ service seems to fall within the scope of a disciplinary hearing and therefore the right to be accompanied would apply.
Whilst you don’t have an obligation to remind employees of their right to be accompanied you could find yourself in a situation where you’ve sat down with an employee who has less than 2 years service and they ask to be accompanied? What should you do?
You have two options:
- You can refuse the right to be accompanied and press ahead with the meeting.
- You can adjourn the meeting to allow the employee to find someone to accompany them.
4. Consider the Risks and the Costs
The decision lies with the business as to the risk that it is willing to take. Whilst the right to be accompanied is a statutory right it carries with it a potential of a maximum of two weeks’ pay compensation award to the employee. This would require an employee to raise a claim with the Employment Tribunal service and they will need to pay a fee to do this. Therefore, they would need to be a fairly high-paid employee for this to be financially beneficial to them so the likelihood of most people pursuing this is slim.
Equally, it could be that, if you adjourn the meeting the employee will go sick for two weeks or not be able to find someone to accompany them for weeks so it will cost you more than two weeks salary anyway.
There’s never a right or wrong answer and it will always depend on circumstances but hopefully you now feel that you know a little more about this subject and would be more confident if faced with a challenge.
Dealing with employee dismissals whether those where the employee has a long length of service or those where an employee has less than two years’ service can be a minefield. We’ve supported many clients through the process so if you need help to handle a dismissal do not hesitate to give us a call on 0203 319 1649 and we will be happy to talk the options through with you.