Who is covered by the legislation?
The term "worker" includes anyone who performs work personally for someone else, but is not genuinely self-employed, as well as agency workers and home workers. There are no exclusions for casual workers, workers on short-term and fixed-term contracts, part-time workers or those who work overseas.
When does the right arise?
The right is only available when a worker "reasonably requests" to be accompanied. A request may be unreasonable if, for example, the person chosen to do the accompanying could prejudice the hearing.
How do disciplinary and grievance hearings differ?
A grievance hearing concerns "the performance of a duty of the employer in relation to the worker". Employers have to keep their side of the contract of employment, say by paying a worker the salary they said they would. They also have duties under statute, for example in relation to health and safety.
A disciplinary hearing is one that could result in: the administration of a formal warning that would be placed on a worker's record; the taking of some other action in respect of a worker by his employer, such as dismissal or suspension; or the confirmation of a warning issued or some other action taken.
What can a companion do at the hearing?
The companion can address the hearing and confer with the worker. The legislation specifically states, however, that the companion cannot answer questions on behalf of the worker. The companion should be able to advise and support the worker, but not represent them as an advocate. The worker can request a postponement of the hearing if the desired companion cannot attend and request a alternative date and time within five working days.
The companion can address the hearing but cannot answer questions on behalf of the worker
What happens if the right to be accompanied is infringed?
If an employer refuses or threatens to refuse a worker's request to be accompanied, the worker can submit a complaint to an employment tribunal. If the tribunal finds in favour of the worker, the employer may be liable to pay compensation of up to two weeks' wages.
Both a worker and a companion have the right not to be subjected to penalties, both before and after the hearing, as a result of exercising the right or acting as a companion.
If the worker or the companion is dismissed for using the legislation, that will be regarded as unfair dismissal.
As an employer, what should you do?
You should check your internal procedures to ensure that they comply with the legislation and that it is made clear that workers can be accompanied at hearings. Any managers charged with investigating or hearing disciplinary or grievance matters must be made aware of the right and the importance of complying with the legislation.
If you have informal interviews to investigate disciplinary matters, be careful that these do not turn into a disciplinary hearings. If it becomes clear during an informal interview that formal disciplinary action may be needed, the interview should be terminated and a formal hearing, at which the worker has the right to be accompanied, should be convened.
Postscript
Tara Meagher is a solicitor with Beale and Company
