Right to be accompanied – ACAS Codes
ACAS has widened the scope of the right to be accompanied at disciplinary/grievance hearings in its latest Code of Practice, designed to ensure fairness in the disciplinary process.
Employers should be aware of the changes because tribunals are obliged to have regard to the relevant ACAS Code when dealing with a claim. Any employers that are found to be in breach of a Code can be subject to an increase of 25% in compensation awarded to a claimant.
Right to be accompanied – case law
The change follows a case from 2013 where the tribunal ruled that the right of an employee to be accompanied when asked to attend a grievance of disciplinary meeting, applied only to the request to be accompanied, rather than the choice of companion. As such, as long as an employee makes a reasonable request to be accompanied, that employee has an unfettered right to be accompanied by whomever they choose, providing that companion falls within an approved category or as allowed under the terms of employment.
Right to be accompanied – an even wider right?
Additionally, in the more recent case of Stevens v University of Birmingham (2015), the High Court ruled that the University had breached the implied term of trust and confidence by not allowing one of its professors to be accompanied to a disciplinary investigation meeting by a companion of his choice.
Right to be accompanied – the law
As the above cases demonstrate, employers must be extremely careful before refusing to allow an employee to be accompanied, even if the companion does not fall within an approved statutory category. The revised ACAS Code now covers (amongst other things):
- What is a reasonable request
- Who an employee can choose as a companion (an employer must allow an employee to be accompanied if that companion falls within an approved statutory category)
- Whether a request to be accompanied is reasonable depends on the circumstances of the particular case
- When an employee can change their choice of companion
Right to be accompanied – legal advice
As you can see, whether or not to allow an employee to be accompanied by their chosen companion at a disciplinary/grievance hearing can be a complex and difficult decision. If you are an employee seeking advice on your right to be accompanied, or an employer entering into a disciplinary process with a member of staff, our dedicated team of employment law experts are here for you whenever you need us.
We have offices in Leicester, Hinckley and Market Harborough where we will be happy to have a chat over the phone or arrange an appointment for you to come to see us.