The right to be accompanied: if you don’t ask, you don’t get?

The ACAS Code of Practice on Disciplinary and Grievance Procedures says that employees should be told in writing about the allegations against them and informed of their right to be accompanied before a disciplinary meeting.

It’s always key to follow a fair procedure.  If an employee is ultimately dismissed and later brings an unfair dismissal claim you will generally need to show that you have acted reasonably and followed the Code.

Wolfe v Taka Mayfair Ltd

In  Wolfe v Taka Mayfair Ltd, Mr Wolfe was called into a meeting without warning, he was not told what it was about and was dismissed at the end of it.  He argued amongst other things that his legal right to be accompanied had been breached because he had not been given the opportunity to bring anyone with him.

When does the right to be accompanied apply?

The legal right of accompaniment applies to certain disciplinary and grievance hearings, including relevant appeal hearings.  It doesn’t apply to redundancy consultation meetings although in some circumstances it can be good practice to offer the right in a redundancy process.

Where the right applies, the worker can choose to be accompanied by:

• a work colleague;
• a trade union official; or
• a trade union representative who has been appropriately certified or trained.

Note that the employer does not need to recognise the trade union, and the worker does not need to be a union member.

The companion can speak at the hearing, put forward the worker’s case and talk privately with them. However, they cannot answer questions on the worker’s behalf.

If the chosen companion cannot attend the proposed meeting, the worker can suggest another reasonable time, provided it is within five working days of the original date.

Section 10 of the Employment Relations Act 1999

The Employment Appeal Tribunal (EAT) disagreed with Mr Wolfe that his legal right of accompaniment had been breached.

Under Section 10 Employment Relations Act 1999, the legal right to be accompanied only applies where the worker asks to be accompanied. He hadn’t made a request, so there had been no breach of this particular right.  Even though he may not have realised what the meeting was about until it was too late, he still didn’t ask.

Surprise disciplinary meetings are not good HR practice

Wolfe simply explains the minimum required by the statutory right to be accompanied.  It should not be treated as a guide to good HR practice.

The EAT confirmed that the law does not itself require an employer to tell an employee that a meeting is disciplinary or explain that they have a right to bring a companion. But that definitely does not mean surprise disciplinary meetings are a good idea.

Further reading

• Unfair dismissals – ACAS
• Employee conduct shouldn’t always impact compensation – Hunter Law
• Employee serves binned food to customers – Hunter Law
• Compensation should be fair and proportionate – contributory fault – Hunter Law

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