“Can I bring somebody with me?” This is a question you may be asked during a disciplinary procedure but there are other times when this statutory or contractual right of accompaniment may also apply such as during a grievance, flexible working or redundancy procedure. You may need to be flexible in your approach when answering this question.
If a meeting is held and the possible outcome could be disciplinary action of some kind or a dismissal, the statutory right to accompaniment is triggered. However, what if an employee would like to bring somebody with them to an investigation meeting? This right is not normally triggered at this stage unless you offer this as a contractual right within your procedure. The reason that this right does not normally apply during an investigation process is because no disciplinary action or dismissal is being contemplated at this stage. You are conducting an investigation to try to establish the facts of the allegation(s) and then a decision will be taken as to whether to continue to a disciplinary procedure or not.
A recent case (Collins v ILC-Manchester Ltd ta International Learning College) concerned an employee on probation when he was refused the right to be accompanied when requested by him at a meeting to confirm the termination of his employment due to the unsatisfactory completion of his probationary period. Therefore, an employer needs to make it clear in these particular circumstances that a meeting of this type is simply to communicate a decision already made to terminate employment and that it is not up for discussion or debate. If this is not made clear then the employee may believe their statutory right of accompaniment has been triggered and this would apply even for a short service dismissal.
If you do receive a request in this situation you may wish to consider granting it, thereby preventing a claim. In this particular case the ex-employee could not bring a claim for unfair dismissal as they did not have the 2 years’ requisite continuous service but they could bring a claim based on the denial of the statutory right of accompaniment. The maximum award for this breach would be £928 which is 2 weeks of the Government’s current weekly pay of £464. As this employee had such short service they were only awarded 1 week’s pay. It is unlikely that a claim would be brought for this as a standalone claim due to the introduction of tribunal fees on 29/07/13 however, this may be brought alongside a claim of discrimination and not be helpful to an employer trying to prove discrimination did not occur.
Another recent case (Toal v GB Oils) highlighted a judgement which was in conflict with the ACAS Code of Practice guidance. The Code states that a representative can be refused if the employer feels that their presence would “prejudice proceedings.” In this case the employer refused a certain Trade Union official from attending but this was found to be in breach of the Employment Relations Act 1999, section 10. In the Act this right is viewed as an “unfettered” right so it would be wise to think carefully before refusing a particular person’s attendance. Acceptance also means that matters can move forward to conclusion for all parties.
There are times when flexibility is essential if the employee has a disability, learning or language difficulty (including a possible interpreter), if they are ill or an apprentice. In the case of meetings related to health, a family member being present may be helpful to them and enable an ill health dismissal to take place.
Joanna Dobie, Senior HR consultant , Alcumus Group