I have been doing some work recently on the right of accompaniment in disciplinary hearings and have come across a 2012 judgement that emphasises some of the protections a co-worker has if they accompany a colleague to a disciplinary or grievance meeting.
The decision, Evans v Opensight (2011) is a first tier tribunal decision but is useful because it is rare to see a decision on this issue. As should be commonly known but, depressingly in my experience is not, every worker has a legal right to be accompanied by a trade union representative or a workplace colleague at any disciplinary or grievance meeting if they reasonably request this. This right is set out in section 10 of the Employment Relations Act 1999.
Recognising that that right is worthless if a worker’s colleague are reticent to help because they believe they will themselves be penalised by the employer for doing so Employment Relations Act has an anti-avoidance measure protecting a worker who volunteers to accompany a colleague to a meeting. Section 12(1) of the Act states that
A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that he [and in legislation it always is a he, unfortunately] … accompanied or sought to accompany another worker (whether of the same employer or not) pursuant to a request under that section.
In short, if a worker attends or plans to attend a disciplinary or grievance meeting with a co worker then the employer is not allowed to penalise them or place them at any detriment for the fact that they did so and, if they do so then that individual has the right to bring an employment tribunal claim for having done so. Similarly, section 12(3) of the Act also states if a worker is dismissed for having acted or planned to accompany a colleague then that dismissal is automatically unfair.
In Evans the claimant was a new employee whose was subject to probation and whose appointment the Deputy Chief Executive had opposed. Ms Evans was asked to accompany two workers (including the CEO) to a meeting which related to a dispute with the deputy CEO. A week after meeting the deputy CEO convened a probation review with Ms Evans and dismissed her at that point. At the tribunal evidence that there had been no performance concerns before the meeting, the evidence that the Deputy CEO had discussed the issue of her accompaniment in detail with HR advisers all led the tribunal to the conclusion that the primary reason for the dismissal was that Ms Evans had accompanied a colleague. Therefore, her dismissal was automatically unfair.
For a trade union representative the protection offered by s.12 of the 1999 Act is perhaps not too crucial. If a rep is attending a meeting as a union representative then their participation in the meeting is likely to be trade union activities which means any detriment is able to be argued to be a detriment for undertaking legitimate trade union activities.
Claims of detriment because of accompanying a worker to a disciplinary and grievance meeting are rare, since ET judgements have been online in 2017 I have seen very few cases where such a complaint has gone on to a substantive hearing. For a non-union colleague however the decision in Evans is a still a useful reminder that an employer cannot treat an employee detrimentally just because they have or have threatened to assist a work colleague in a disciplinary or grievance meeting.
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