Changes to disciplinary and grievance processes: employers must accept workers’ choice of companion

Employees have the right to be accompanied by specific companions to meetings, where that meeting could result in formal warnings and disciplinary actions. Until recently the companion chosen by the employee was subject to a test of reasonableness and, further, employers could refuse the presence of certain companions. This meant that, where there was a potential conflict of interest caused by the companion being a colleague, for example, the employer could refuse the attendance of the companion.

Now, however, following on from a 2013 case the position for employers has changed.  The choice of companion is clearly the employee’s right and employers must agree to the worker’s choice of companion in any formal disciplinary or grievance matter, as long as that companion is either a Trade Union representative or official, or a work colleague.

Acas have amended their Code of Practice on Disciplinary and Grievance Procedures, making clear that the choice of Trade Union representative or official, or work colleague, is not linked to a reasonableness requirement, emphasising that it is a statutory and absolute right. 

In most circumstances, the employer will also have to allow the companion to have a say in when the meeting will take place.  Employers may, however, be entitled to refuse to delay formal disciplinary hearings where it is clear that the employee or companion is trying to frustrate the disciplinary process.

Failure to allow an employee to be accompanied by a companion carries the risk of being ordered by a tribunal to pay up to 2 weeks’ pay. There are also potentially much more serious consequences.  For example, it could amount to a breach of the Acas Code, which could increase sums payable in an unfair dismissal claim. It may amount to a breach of the implied term of mutual trust and confidence between employer and employee, which could amount to a constructive dismissal and, where Unions are involved, could impair relations with the Unions.  With these potential costs in mind, employers may need to update employee manuals accordingly, ensuring the choice of companion is not restricted beyond that of Trade Union reps, officials and work colleagues.

For further information on this area, please do not hesitate to contact our legal team at Lawspeed on 01273 236 236.