The Right to Accompaniment and Unfair Dismissal

I have discussed the right of accompaniment on this blog before in the context of the worker’s right under section 10 of the Employment Relations Act 1999. One component of that right is an explicit right that if a worker’s chosen companion at a formal grievance of disciplinary meeting is unavailable then the worker can put forward another time and date within five working days of the meeting and the employer is normally required to accommodate that alternative time. If they do not then a worker could pursue a tribunal claim for that specific breach but also potentially that that failure also made the dismissal unfair.

In the context of this relatively common situation the decision of the Employment Appeal Tribunal in Talon Engineering Ltd v Smith [2018] IRLR 1104 EAT  offers a helpful clarification.

The relevant facts of the case were that the worker (Smith) was accused of misconduct and was invited to attend a disciplinary meeting. Mrs Smith wanted to be accompanied by her Unite representative and informed her employer of this. However, the union representative was unavailable for two weeks and suggested a three dates date for a meeting. This was not therefore a request for an adjournment under section 10 of the Employment Relations Act 1999 as the proposed date was more than five working days in the future.

The employer refused to defer the meeting until the rep was available and, because of that refusal, Mrs Smith refused to participate in the dismissal hearing. Mrs Smith was consequently summarily dismissed.

The EAT upheld the employment tribunal’s decision that the even though there had been no breach of Mrs Smith’s rights under section 10 of the Employment Rights Act 1999 it did not follow that the decision to refuse the adjournment request was fair for the purposes of the different unfair dismissal test in section 98(4) of the Employment Rights Act 1996. In the particular circumstances the refusal of the adjournment made the dismissal unfair.

Of course, this does not mean the employer must always agree to an adjournment if a rep is unavailable but it does show that the knee-jerk reaction of employers such as that displayed in Talon  to refuse any adjournment that does not meet the section 10 minimum requirements can run an employer into difficulties. Talon is a useful case for a rep to be aware of to equip them to  question such knee-jerk reactions.

Eight Ways Employers Interfere with the Right to Accompaniment

Disciplinary-ProceduresSection 10 of the Employment Relations Act 1999 introduced the right of a worker to be accompanied by a trade union official (full time officer or local representative) or fellow employee of the employer. If the right is breached then an employee has a freestanding right to make a claim to an employment tribunal for that breach, although the compensation available for the breach is minimal and often effectively meaningless with the award of ‘nominal’ damages giving an employer an effective free pass if they choose to flout the law and the claim is a freestanding one.

The right to accompaniment by a trade union representative was not created by the 1999 Act and prior to its enactment it was a requisite part of a fair disciplinary process that an employee have the opportunity to be accompanied by a trade union representative if they wished. Even now this expectation is broader and distinct from a narrow focus on the section 10 right, as the relatively decisions in Talon v SmithLeeds Dental Team Ltd v Rose and Stevens v University of Birmingham demonstrate. I plan to discuss those cases in a later post but I thought a survey, based on my own experience with different employers, the ways in which I have seen or been aware of an employer interfering with a worker’s right to accompaniment may be of interest.

And so, in no particular order the eight ways an employer interferes with an employee’s right of accompaniment:

1. This is just an informal chat

The ACAS Code of Practice explains that the disciplinary “notification should also … advise the employee of their right to be accompanied at the meeting” and it is  likely that that would be considered relevant in considering the fairness of a disciplinary process. However, one of the major omissions of the Labour party when introducing the freestanding rights of employees in section 10 was that they failed to introduce a requirement that an employer must also advise the employee of their right to be accompanied; instead, an employee is required to know in a situation where meetings may take place with no notice what their employment rights are.

This is a situation I have seen abused on multiple occasions with managers adopting an ‘under the counter’ disciplinary process. It does not look like a formal disciplinary process, after all formal letters in the HR policy are not used with their five working days notice of hearing, instead there is a ‘brief chat,’ ‘performance discussion’ or the like at which an employee is criticised for some misconduct and told they are on an ‘informal’ warning for a period of time which is recorded on the personnel. When challenged the same managers say this was informal. Secton 13 of the 1999 Act sets out that a disciplinary meeting is a meeting that can result in a “formal warning” or the “taking of some other action in respect of a worker by his employer.” Certainly, the legal position is not completely clear but I find it hard to consider a time limited warning that is recorded is not ‘formal’ whatever terminology an employer chooses it and it is nonetheless likely to be “some other action.” For the employee of course the advise is if in doubt about whether a meeting is a disciplinary meeting make the request to be accompanied explicit to the employer.

2. Deferral on our terms

This issue was for a time a persistent one that prompted me to focus on the issue as my research project on the TUC Diploma in Employment Law. Section 10(4) of the 1999 Act specifies that if a rep is not available and the worker requests an adjournment to postpone for a date within five working days of the hearing then and the alternative time is reasonable then the “employer must postpone the hearing to the time proposed by the worker.” The astute observer will note that it does not say what most HR policies I have seen tend to say, namely that a the hearing should be deferred for up to five days – what this misses is that the employer “must” defer to the time proposed by the worker, not just to a time that is convenient to the employer within five working days.

Frequently, I have been unavailable to attend a meeting a deferral is requested during normal working hours and an alternative time has been proposed but the meeting has been rescheduled to a different time at the manager’s convenience. Mostly this is a good faith, albeit wrong, decision but sometimes I have a suspicion it is a conscious decision when the reorganised meeting just happens to be when I am also unavailable to try to engineer a meeting at which the member will not have their chosen representative present.

The fact is unless the proposed time is unreasonable and in my view following Toal an unreasonable alternative time is difficult to make, especially with a large employer then section 10(4) requires that the meeting must be held at the alternative time proposed by the worker.

3. Sorry, your rep is not going to be Paid / is not going to be given time off

Most disciplinary accompaniment in disciplinary and grievance hearings is done by a fellow worker who is also a trade union representative- who has their own job to do for the employer. This means if a rep is to attend a meeting they will need to be given time off by the employer to attend. Section 10(6) of the Employment  Relations Act 1999 envisaged this scenario which is why it provides that “An employer shall permit a worker to take time off during working hours for the purpose of accompanying another of the employer’s workers” and section 10(7) also makes reference to section 169(1)the Trade Union and Labour Relations (Consolidated) Act 1992 which requires that any time off for must be paid.

Generally this is likely to occur when an employer refuses to allow a person time off to attend a meeting but in my case the situation was slightly different.  I requested time off to attend a manager granted this but told me the employer would not pay me (not the first time they had said this). This ended up being subject to employment tribunal proceedings for breaching section 10. I still do not understand why but the employer defended the case – in the end after a hearing the employer was found to have breached the law on right to accompaniment.

4. Right to have one’s hand held, Or, silencing the right. 

At a time I was working for the an employer and I was not a union representative I accompanied a fellow worker in a disciplinary meeting. Both in letters and at the start of the meeting the company HR Advisor ‘explained’ to me that the role of the companion was to provide ‘moral support’ to the worker and that I really should not need to say anything.

In the event I had brought with me a copy of the ACAS Code of Practice and was able, in response, to explain – as she most surely knew already – that, as the Code of Practice puts it, the “companion should be allowed to address the hearing to put and sum up the worker’s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing.” The HR advisor backed down (if I recall rightly with a ‘it was all a misunderstanding’ tact) and the meeting proceeded which the result that no warning was given.

Certainly a companion often does give ‘moral support’ but their role can be much broader than that, including putting forward (with the employee’s consent) arguments why a warning should not be given or why a grievance should be upheld.

5. Get a rep and you’ll get a warning

It is common a common experience that a member reports that their manager has spoken to them about an upcoming hearing with a ‘i’m only looking out for your interests’ tone suggesting that bringing a rep to a meeting with them would be unhelpful to their case. That is an astonishingly common scenario.

Sometimes however, an employer may ‘up the ante’ and suggest that if a rep is enlisted then it is more likely that the outcome will be harsher than it would otherwise be, perhaps the difference between a final written warning or dismissal. Any detriment or dismissal for exercising a right to accompaniment is of course unlawful (section 12(1) of the 1999 Act) although, such a case is often difficult to prove.

6. Threaten to refuse time off

On paper the job description of an ’employment relations manager’ will have references to developing constructive working relationships with trade unions and similar. No doubt, many HR and employee relations do conduct themselves with professionalism but the exceptions are more common than one would like to believe. One such instance was in the context of an ongoing dispute between the union and senior managers – after making negative changes without union agreement the employer was put out when this was not accepted without dispute and the union did not ‘play ball.’

And so in a fit of pique a senior employee relations manager made a threat to every rep that if they did not drop their opposition all facility time requests would henceforth be refused. I have already discussed how a union rep ‘must’ be granted time off if a worker makes a request for union accompaniment. But what about a threat, even if not followed through? Section 11(1) of the Act, which concerns enforcement of the section 10 makes clear a worker can bring a case on the basis that an employer “threatened to fail” to meet their obligations. So, the simple act of threatening to refuse to allow a worker to be accompanied, or allow a rep time off to accompany the worker, may be unlawful.

7. We don’t recognise you
Section 10(3) of the 1999 Act lists three categories of person who can if there is a valid request accompany a worker to a meeting (the employer can voluntarily expand this list). The three categories are i) a fellow employee of the employer, ii) a trade union official (someone employed by the trade union), iii) a trade union representative (usually elected by members). Two things are clear from this list. First, that a worker does not have to be a trade union member to be accompanied by a trade union representative. Second, that the employer does not have a choice as to which trade union will assist a worker.

In an employer where there is a main trade union and a smaller union presence, perhaps with only one union being recognised by the employer for collective bargaining an employer can sometimes refuse a meeting a representative permission to attend if they are not used to dealing with them. This is in some ways an understandable response but it is one I have encountered on more than one occasion.

8. Any rep but that one!

Along similar lines is the last example, when an employer refuses to allow a particular rep to attend – for example because they work in the same unit as the worker, are otherwise involved, or even because they are a good rep and the employer would prefer another rep to be involved (they’d  normally come up with a better sounding reason!).

This was the subject of an important Employment Appeal Tribunal decision in Toal v GB Oils Ltd. The facts were that a worker requested a particular rep to attend a meeting with him but the employer refused permission, instead allowing a different rep to attend. This was found to be a breach of the worker’s right to accompaniment because, as the ACAS Code puts it, the right relates to a worker’s “chosen companion” not just chosen union.