Right to be accompanied

All workers have the right to be accompanied in a formal grievance or disciplinary hearing by:

• an official who is employed by a union, or
• a trade union workplace representative who has been certified by the union as being competent to accompany individuals, or
• a colleague.

See Toal & Anor v. GB Oils (2013) which confirms that the choice of accompanying person is that of the worker.

This right is contained in Section 10 of the Employment Relations Act 1999 and is supported by the Acas Code of Practice.

The law does not require a union representative to accompany an individual who asks to be accompanied. A member should not pressurise a union representative to attend a meeting.

When does the right to be accompanied apply?

The right to be accompanied applies to any disciplinary hearing, including a capability hearing, which could result in:

• a formal warning being issued
• any other disciplinary action being taken, including a dismissal
• an appeal meeting relating to a warning or other disciplinary action.

There is no right to be accompanied in investigation meetings or informal disciplinary meetings. However, employers need to be careful to ensure that such meetings do not lead to disciplinary action being taken as this would deprive workers of their right to be accompanied.

The right to be accompanied applies to any grievance hearing where an employee is complaining about a legal duty which their employers owes them, for example a contractual or a statutory right.

The right does not apply where a worker asks for a pay rise, unless their contract provides a right to an annual increase. It also does not apply where an individual is requesting a discretionary car parking space, unless the employee is disabled and can prove that failure to provide a car parking space would amount to disability discrimination.

In many workplaces, unions have negotiated the right for unions to represent members fully in grievance and disciplinary matters.

Good practice for employers in grievance and disciplinary procedures

• Workers should be informed in writing of their right be accompanied.
• All meetings, including appeals, should be arranged at a time that is convenient for the individual and their representative.
• All grievance meetings should take place in private and arrangements should be made to accommodate the needs of disabled workers and migrant workers, including allowing facilitators or translators to attend meetings.

What happens if a union representative is not available?

The Acas Guide on Discipline and Grievances at Work suggests that where possible the employer should allow a companion, including a union representative, to have a say in the date and time of a hearing. If a union representative cannot attend at the time that an employer has proposed for a meeting, the worker can suggest an alternative time and date, so long as it is reasonable and is not more than five days after the original date.