Under the Employment Relations Act 1999 a worker has the right to be accompanied by a fellow worker or trade union representative at an internal disciplinary or grievance procedure hearing, provided the request is reasonable in the circumstances. A worker also has the right not to be subjected to any detriment because they have exercised, or sought to exercise, this right. Dismissal of a worker for doing so is automatically unfair dismissal.
After the legislation was introduced, it became clear that clarification was needed as to the extent to which the companion in these circumstances is permitted to speak and changes were made by the Employment Relations Act 2004. These stipulated that the employer must permit the worker's companion to:
a) address the hearing in order to do any or all of the following –
- put the worker's case;
- sum up the case;
- respond on the worker's behalf to any view expressed at the hearing;
b) confer with the worker during the hearing.
An employer is not, however, required to permit the worker's companion to answer questions on behalf of the worker, to address the hearing if the worker indicates that he or she does not wish the companion to do so or to exercise his or her rights in such a way that prevents the employer from explaining their case or that prevents any other person at the hearing from making a contribution to it.
As well as clarifying the role of the companion, the revised legislation also gives the companion protection against detriment and dismissal for carrying out the role.
A recent case on this topic (Gnahoua v Abellio London Limited) concerned a bus driver who was dismissed by his employer after he was caught looking at his iPad when his vehicle was moving. The decision to dismiss him was taken at a disciplinary hearing at which he was accompanied by an official from Unite the union.
The driver appealed against the decision to sack him and requested that one of two brothers from the PTSC union, which he had recently joined, be permitted to accompany him at the subsequent hearing. Whilst his employer was happy for him to be accompanied by a member of that trade union, it had banned the men in question from carrying out that role on account of their past conduct, which involved falsifying a witness statement in separate Employment Tribunal (ET) proceedings and threatening behaviour towards members of staff. In the event, the hearing went ahead without a companion being present. The driver claimed that he had been denied the right to be accompanied at the hearing.
The ET accepted that the employer had breached his right to be accompanied at the disciplinary hearing but awarded him nominal compensation of £2 as he had not suffered any loss or detriment and the employer had strong grounds for objecting to his choice of companion.
The ET was at pains to make clear, however, that as a general rule an employer should not interfere in the employee's choice of companion. In this case, the employer had followed the Advisory, Conciliation and Arbitration Service code of practice when conducting the disciplinary proceedings and its refusal to allow the chosen companion was understandable.