Who can accompany an employee to a disciplinary investigation? Can an accompanying person help or hinder an investigation? Find out more in this latest post in our disciplinary series.
There’s nothing we hate more than being the bearers of bad news, especially when it comes to telling employers who’ve dismissed blatantly guilty employees that they’re exposed to potentially valid unfair dismissal claims. However, we often are and so it makes sense for us to set out the main reasons why in the hope that we don’t have to hold the receiver away from our ears for fear of deafness as much in future. We’ll do this in a series of blog posts over the course of the next couple of weeks, covering a different reason in each post. Of course, if you’re an employer and would like to discuss any of the issues touched on in these posts, please contact one of our HR consultants in confidence and without delay for some initial advice free of charge and without obligation.
In this post, we deal with the problems employers can cause themselves in relation to the employee’s accompanying person and the corresponding statutory right.
First and foremost, we’re frequently asked whether an employee request to be accompanied at an investigation meeting should be agreed to. Our answer in invariably a qualified “No”. Qualified because although there’s no statutory right to be accompanied at investigatory meetings, employers need to be mindful of any such right that may exist under their internal disciplinary procedure or which may have arisen through custom and practice.
Regarding the individuals that can fulfill the role of an accompanying person, the Acas Code states that the statutory right provides for ‘…a fellow worker, a trade union representative (who is certified by their union as being competent to accompany a worker), or an official employed by a trade union’. Whilst there’s no statutory right to be accompanied by any other type of person, it’s often the case that employees will seek to bring along (1) a friend or family member who doesn’t work for the employer; or (2) a legal representative. In respect of (1), we tend to advise that whether this is agreed to is at the employer’s discretion. However, it’s worthy of note that it might amount to a reasonable adjustment in the case of a disabled worker. In relation to (2), it has been held that there can, in limited circumstances, be a right to legal representation at internal disciplinary hearings conducted by public sector employers where there will be a follow-up statutory process at which the employee’s right to work in their chosen profession will be determined.
Another common cause of confusion among employers is what constitutes a ‘reasonable request’ in the context of the employee’s choice of accompanying person, e.g. in relation to their location and/or general availability. Prior to March 2015, the Code provided that…
‘To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.’
In Toal v GB Oils  UKEAT/0569/12, however, the EAT confirmed that the choice of companion was not a factor in determining reasonableness. Therefore, as long as the accompanying person is a fellow worker or appropriate trade union official, the worker will have complied with the statutory requirements in this regard. Accordingly, the Code was amended to make it clear that workers are free to choose who they like as their accompanying person at grievance and disciplinary hearings, provided they meet the relevant definition.
Chris Nagel, Director / Head of HR at EML comments:
“Employees often think employers are simply being difficult when they refuse requests to be accompanied by family members or legal representatives. However, the reality is that involving such external third parties in internal disciplinary proceedings could well result in emotive contributions from the former and protracted discussion / correspondence with the latter, all of which would probably obstruct the employer’s main aim of addressing disciplinary issues promptly, without unreasonable delay and before memories of the incidents that comprise the allegations fade.”
Look out for our next post, which will deal with the need to consider mitigating factors prior to deciding on disciplinary sanctions.