Companions at Discipline and Grievance Hearings
The Employment Relations Act 1999 states that workers attending formal disciplinary or grievance meetings may make a reasonable request to be accompanied at the hearing by a fellow worker, trade union representative or official.
What is a Reasonable Request?
The ACAS Code clarifies that the reference to a “reasonable” request applies to the making of the request not to the worker’s choice of companion. As such, a request made five minutes before a meeting for accompaniment by a companion located 250 miles away probably would not be reasonable. However, as long as the request is made reasonably, there is nothing stopping an employee from choosing any companion from the three statutory categories. Therefore, it appears there is little an employer can do to prevent a particularly difficult or disruptive companion attending a meeting where a request is made reasonably. However, the Act does limit the scope of a companion’s involvement in a meeting. The amended ACAS Code also confirms that a worker may change their chosen companion if they wish.
What is a Companion?
Employees have a statutory right to be accompanied at disciplinary and grievance hearings in certain circumstances. The purpose of a companion is to provide support during what can often be a stressful and potentially serious workplace meeting.
In most cases, the companion will either be:
- a fellow worker, or
- a trade union representative or certified trade union official.
Employers may choose to allow another individual to attend as a companion, such as a family member, friend or adviser, but there is not usually a legal obligation to do so unless particular circumstances apply. For example, additional flexibility may sometimes be appropriate where an employee has a disability or other circumstances that affect their ability to participate fully in the meeting.
Before refusing a request for a particular companion, employers should consider the specific circumstances carefully and assess whether any legal obligations, including duties relating to disability discrimination or reasonable adjustments, may be relevant.
What Happens if a Companion Cannot Attend?
A common question for employers is whether a disciplinary or grievance hearing must be rearranged if the employee’s chosen companion is unavailable.
Where an employee has the statutory right to be accompanied and their chosen companion cannot attend the proposed hearing date, the employee may request that the meeting is postponed. In these circumstances, employers should act reasonably and consider the request carefully before deciding how to proceed.
However, the right to be accompanied does not give employees an unlimited right to delay proceedings. Employers are entitled to balance the employee’s right to representation against the need to progress matters within a reasonable timeframe.
Where postponements are requested, employers should consider factors such as:
- the reason for the companion’s unavailability,
- whether alternative dates have been proposed,
- the seriousness of the matter being considered,
- any previous postponements, and
- whether further delay would be reasonable in the circumstances.
In practice, most issues can be resolved by agreeing an alternative date that allows both the employee and their companion to attend. Maintaining flexibility and adopting a reasonable approach will often help avoid unnecessary disputes about the process itself.
Where attendance at disciplinary meetings becomes problematic for other reasons, such as sickness absence, repeated postponement requests or an employee refusing to engage with the process, employers should consider the wider circumstances before deciding whether to proceed.
What is the Role of a Companion?
One of the most common misunderstandings in disciplinary and grievance procedures is assuming that a companion takes over the meeting on behalf of the employee. This is not normally the purpose of the companion’s role.
A companion is there to provide support and assist the employee during the hearing. Depending on the circumstances, this may include:
- Taking notes during the meeting,
- Conferring privately with the employee,
- Helping the employee present their case,
- Asking questions or seeking clarification, and
- Summing up the employee’s position.
However, a companion would not normally be entitled to answer questions on the employee’s behalf, prevent the employer from explaining its case or disrupt the meeting. Employees are generally expected to respond to questions personally unless there is a specific reason why adjustments may be required.
Employers should ensure companions are given a reasonable opportunity to participate appropriately while maintaining control of the hearing and ensuring the meeting remains focused on the issues being discussed.
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