The right of accompaniment beyond section 10 of the Employment Relations Act 1999

A couple of weeks ago I highlighted an old ET decision on the right of accompaniment, the 2017 decision in Everitt v Regal Consultancy (2017) raises another issue linked to the right to be accompanied, that of whether a worker can be accompanied by a family member who is not a trade union representative or co-worker.

This is an issue that does come up frequently, especially when an worker is not a union member of the worker is particularly vulnerable or in need of additional assistance.

There is only one express right to be accompanied to a disciplinary or grievance meeting in UK employment law and this is found in section 10 of the Employment Relations Act 1999, although some employment contracts may also confer that right. The section 10 right limits the categories of person who can accompany a worker to a fellow employee of the same employer or a union official. Therefore, one could mistakenly assume that the there is not right of accompaniment by any one other than a colleague or union official . However, the responsibility of an employer to allow someone to be accompanied engages other legal obligations beyond the statutory right of accompaniment. In this article I want to highlight three such scenarios beyond the statutory right to accompaniment on the Employment Relations Act 1999.

Nondiscrimination

The facts of the decision are not clear in the ET’s 2017 judgement but they can be obtained by analyses elsewhere (here on p.304 and here) but there was a finding that there “was a failure to make reasonable adjustments by providing that the Claimant could only be accompanied at the disciplinary hearing by a trade union official or work colleague.”

The claimant was a disabled person (autism) and this disability impaired his ability to communicate. He was accused of misconduct and asked for a family member to attend but this was refused. The tribunal found that applying a policy that an employee could only be accompanied by a work colleague or trade union representative (i.e., the categories in s.10) placed him at a substantial disadvantage because of disability and the refusal to allow someone else was a failure to make disability related reasonable adjustments.

Reasonable adjustments is probably the most common discriminatory complaint in right of accompaniment cases but, although I am not aware of any cases it is not hard to envisage that for those for whom English is a second language the same policy could also amount to indirect discrimination.

Breach of contract

In Stevens v University of Birmingham [2015] the High Court considered whether an employer who refused the employee the right to be accompanied by someone other than a work colleague or union representative to an investigation meeting was in breach of the contractual term of implied trust and confidence.

The High Court found that despite again being outside the strict definition of whom can accompany on the facts of that case a failure to allow someone else to accompany was a breach of contract. Stevens does not mean this will always be the case, the court made clear the decision was fact sensitive but the case does show again show even outside of anti-discrimination provisions a failure to allow a reasonable request may give grounds for challenge (the term of trust and confidence is not the same a reasonableness but, nevertheless, they do overlap).

When Stevens was first promulgated I was concerned the decision could augur an anti-union movement but this does really seem to have materialised. In fact, Stevens is also potentially helpful in that the meeting in question was not in fact a formal disciplinary or grievance meeting at all but an investigation (which following London Underground Ltd v Ferenc-Batchelor and
Harding v London Underground Ltd [2003] does not attract the statutory right). Therefore, there is scope for union representatives to argue, aside from any negotiated policies, that employees should be able to accompany in any investigation meetings as well.

Act reasonably

Finally, in Leeds Dental Team Ltd v Rose (2013) an employee asked a work colleague who was not a actual employee to accompany them to a disciplinary meeting, but this was refused because the colleague was not in the category of workers set out in s.10. After this refusal the claimant resigned and, as in Stevens, alleged this to contribute to a breach of the implied term of trust and confidence. In a case where a person’s integrity is at issue the EAT affirmed the ET’s decision that a reasonable opportunity should be provided to a person to defend this allegation with support if that person would not prejudice the hearing.

And so, even when an employee cannot or is unable to benefit from the statutory right of accompaniment this does not mean the employer will be on safe ground to simply reject a request for accompaniment.

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