Employment Contracts

by Kate Russell

Formal disciplinary and grievance hearings - right to a companion

Tip

Confirm the authority of the union official to act as a companion and check his identification.

Workers and employees are entitled to be accompanied at formal disciplinary and grievance hearings by a fellow worker or a trade union official of their choice, provided they make a reasonable request to be accompanied. They also have the right to a reasonable postponement of the hearing, for up to five days from the date that the meeting was originally scheduled, if a chosen companion is not available at the time proposed for the hearing by the employer.

If a worker is a union member but your organisation is not unionised, he has the right to be accompanied by his full-time official.

Choice of companion

Provided that the companion is a colleague or trade union representative, the worker has the right to choose whom he likes as his companion.

In the case of Toal and another v GB Oils Ltd [2013], the employees requested to be accompanied by Mr L, a union official, at a grievance meeting. The employer refused the request, so they were accompanied by a different companion at the meeting.

The employees subsequently brought claims that their right to be accompanied had been breached.

Agreeing with them, the EAT held that they had an absolute right to choose their companion, so long as the companion was a trade union official or fellow worker. By not permitting the employees to be accompanied by their choice of companion, the employer had breached their rights which were set out in legislation. This was the case even though the employees had agreed to be accompanied by a different companion and despite the ACAS Code (at the time) indicating that there were circumstances in which an employer could reject an employee’s choice of companion due to unreasonableness.

Unreasonable refusal of representative can be breach of contract

A serious breach of an implied term can support a claim for a constructive dismissal. The most obvious example of this is where the employer’s conduct breaches the implied term of trust and confidence.

In Leeds Dental Team Limited v Mrs D Rose [2014] Mrs Rose was employed as a Practice Manager in a dental surgery. She failed to record a fellow employee’s sickness absence and a disciplinary process was commenced which resulted in Mrs Rose being invited to a disciplinary hearing. She asked to be accompanied at the hearing by the dentist who used to own the practice. The company refused to allow Mrs Rose to be accompanied because it believed that the former owner would support her position. Mrs Rose went off sick and ultimately resigned.

She issued a claim for constructive unfair dismissal, stating various actions by the company, including the refusal to allow her to be accompanied by the former owner, amounted to breaches of the implied term of trust and confidence entitling her to resign. The company accepted that Mrs Rose resigned with sufficient speed and resigned in response to the alleged breaches but denied that the alleged breaches were sufficiently serious to entitle her to resign.

The Employment Tribunal found the company’s refusal had been unreasonable and that it contributed to a breach of trust and confidence, leaving Mrs Rose to have to attend the disciplinary hearing on her own and Mrs Rose’s proposed companion would have prejudiced the proper conduct of the disciplinary hearing. Having considered all of the alleged breaches the Employment Tribunal found that the company had breached the implied duty to maintain trust and confidence in the way it handled the disciplinary process.

This case potentially widens an employee’s right to be accompanied beyond the statutory entitlement as set out at section 10 of ERA 1999. Employers will need to review how they deal with requests to be accompanied by someone other than a trade union official or a work colleague.

However, each case turns on its own facts. In this case the breach of the implied term and the decision to uphold the claim of constructive dismissal was not made solely as a result of the employer's failure to allow Mrs Rose to be accompanied by the previous owner.

Legal representation

There’s no statutory right to be accompanied by a legal advisor. For a while there was some case law which suggested that the employee’s right to a fair hearing would be compromised by the employer’s denial of legal representation. However, in 2011 the Supreme Court reversed this approach in the important case of R (on the application of G) v Governors of X School and Y City Council [2011], and the result is that employees at disciplinary hearings do not have an automatic right to legal representation.

Example

G was a teaching assistant who allegedly kissed a boy of 15. The school took the matter to a disciplinary hearing. G asked to be represented by a solicitor, but was refused. He was dismissed and the governors were obliged to report this to the Independent Safeguarding Authority(ISA) where he would be considered for inclusion on the list of those unsuitable to work with children under the Safeguarding Vulnerable Groups Act 2006.

G issued judicial review proceedings, complaining that denial of legal representation at the initial disciplinary proceedings breached his rights under Article 6 of the European Convention on Human Rights, the right to a fair trial.

Initially he succeeded but on appeal to the Supreme Court, the Court found that Article 6 did not come into play at the initial disciplinary stage. The school was not concerned with G’s civil rights, merely his employment. The majority found that the hearing result would not have had a substantial influence on the later decision to place him on the list of people barred from working with children.

Lord Dyson in his lead judgment found that that the civil right in question was G’s ability to continue in his profession which involved working with children. Therefore a decision by the ISA to bar him would affect his civil rights and Article 6 would apply to those ISA proceedings.

In the view of the Court, it was not the school’s function to determine later proceedings concerning G’s civil rights. The only function of the school disciplinary panel was to determine whether G should continue to be employed and those proceedings did not have substantial influence over the ISA proceedings. The ISA is an independent body. In making the decision whether to place an individual on the barred list, it must assess fully the facts using its independent discretion. The court also recognised the risks surrounding a decision to require legal representation at disciplinary hearings.

The statutory right to be accompanied may only be exercised in relation to a formal disciplinary or grievance hearing. This is defined by the Employment Relations Act 1999 as a hearing that could result in

  • The administration of a formal warning to a worker by the employer
  • The taking of some other action in respect of a worker by the employer
  • The confirmation of a warning issued or some other action taken.

Workers have the right to take time off during working hours in order to accompany fellow workers who are employed by the same employer.

In the case of Skiggs v South West Trains Limited [2005], the court confirmed that an employee does not have the right to be accompanied at a meeting held simply to investigate a formal grievance which has been raised against him.

The aim of a properly conducted investigatory meeting is to establish facts and gather information. This is not a disciplinary hearing to which the right to be accompanied applies, even though it could lead to disciplinary proceedings being taken. However, if you are conducting an investigatory meeting, you need to ensure that it does not turn into a disciplinary hearing. If the meeting becomes disciplinary in nature, adjourn it so that the proper procedures can be followed.

Example

S was a railway guard. In October 2002, the Depot Manager raised a grievance against S, accusing him of spreading rumours about a relationship between her and another guard at the depot.

S was invited to attend a meeting with another manager to discuss the grievance raised against him. He refused to take part in the meeting unless he had ‘appropriate representation’ in the form of a full-time union official and/or his barrister. SWT refused his request as it said the meeting was just an investigatory interview and he had no statutory right to be accompanied at such a meeting.

S complained that he had been denied the right to be accompanied under Section 10 of the Employment Relations Act 1999.

The Tribunal dismissed his complaint, concluding that he had no statutory right to be accompanied at an investigatory meeting. The meeting in question, being purely investigative, did not fall within any of the categories listed in the Employment Relations Act. A grievance meeting is a hearing concerning the performance of a duty in relation to a worker. Since the meeting was not to consider any duty owed by SWT to S it fell outside that definition too. SWT had not therefore breached S’s statutory rights in refusing to allow him to be accompanied. S appealed.

The EAT agreed that S had not been invited to attend a disciplinary or grievance hearing within the meaning of Section 10. The statutory right to be accompanied does not extend to a meeting held to investigate a formal grievance raised against an employee and rejected S’s argument that the definition of ‘disciplinary hearing’ is wide enough to include meetings that could possibly lead to disciplinary action at some point in the future.

Rights of a companion

A companion has the following rights:

  • To help a worker prepare for a formal disciplinary or grievance meeting
  • To ask questions on behalf of the worker
  • To make representations and sum up the case on behalf of the worker.

There is no right to speak in the place of the worker.

For more information see the topic on Discipline and Grievance.