The information provided in this article was correct at the time of publishing.
Back in 2015, we sent out Newsletter No 97 about the right of employees to be accompanied at any grievance meetings. We are now in 2023 and certain aspects have now changed, so we have produced this update.
An employee who is invited to attend a grievance meeting has the right, under the Employment Relations Act 1999, section 10, to be accompanied by an accredited “trade union official or a fellow worker.”
When inviting an employee to a grievance meeting, the employer should inform them of their statutory right to be accompanied. There are a number of things you need remember when dealing with an employee’s right to be accompanied. Much of which can be found in guidance from ACAS:
(1) Not every grievance related meeting attracts the right to be accompanied. When an employee raises a formal grievance, the subsequent meeting you will have with them does mean that they have the right to be accompanied. This meeting is to hear their grievance in full, and to establish whether there is evidence that supports their claim. This could be classed as a type of investigation. If what they raise at that meeting requires further investigation, then it is important that this happens. So, any other follow up meetings with that employee about their grievance will also incur the statutory right of accompaniment. However, other investigation meetings, when you are interviewing other witnesses to establish whether the initial grievance claim has merit or not, does not require you to allow those employees to be accompanied, unless your policy says so.
(2) Employee’s requests to be accompanied must be reasonable. Situations where the request may not be reasonable include, where their chosen companion will not be available to attend a meeting within a reasonable time, for example because of illness, holiday, work or other commitments. The issue of the reasonableness of the request is a matter of fact in the particular circumstances. Employers should carefully justify any rejection of a request by reference to the principles of the ACAS Code of Practice on Disciplinary and Grievance Procedures, including the need to deal with matters promptly and without undue delay.
The companion must be chosen by the employee and can be a fellow employee, or a trade union official who has been certified by the union as having experience of, or having received training in, acting as a companion at such meetings. There is no necessity for the trade union official’s union to be recognised in the workplace, nor is there any obligation on employees or union officials to accept a request to act as a companion.
(3) The employer cannot object to the employee’s choice of companion, so long as the companion is willing, and is available. We would recommend that in making their choice, employees should be told to bear in mind the practicalities of the arrangements.
(4) If the companion is not available at the proposed meeting time, and the employee suggests another time that is reasonable, and falls within five working days of the original time, the meeting must be postponed. The new time can be proposed by either the employer or employee. If the employee again states that their chosen companion is not available, then the employer can recommend they find another companion so as not to postpone matters any further, beyond the initial week’s delay. Trade Union officers are busy people, so if the delay is only for a matter of a couple of further days, it may be advisable to accept a short further delay to appear reasonable.
(5) The companion should be allowed reasonable paid time-off to carry out the role. They are permitted to take a reasonable amount of paid time off during working hours to accompany a colleague, and to prepare and confer with the employee before, and after the meeting. They may present a complaint to a Tribunal if the employer fails to pay them for the time off.
It is important for employers to ensure that an employee advises their employer in advance, of the identity of the person they would like to bring to the meeting as their companion, so that the employer can ensure their availability and support for the employee.
(6) Ensure you understand what the companion can do at the meeting. Employers often mistakenly believe that the companion is there simply to provide moral support, and act as a witness for the employee, but can take no active part in the meeting.
The companion, if they so wish, must be permitted to address the meeting in order to put the employee’s case, they can sum up the case and respond on the employee’s behalf to any view expressed at the meeting. The companion must also be permitted to confer with the employee during the meeting.
A companion can also take notes of the meeting on the employee’s behalf. This may sometimes lead to two versions of the notes, if the version of the employer’s notes is disputed by the employee, based on their understanding of what was discussed at the meeting.
However, the companion has no right to answer questions on behalf of the employee, to address the meeting if the employee does not wish them to do so, or to prevent the employer explaining its case.
(7) If the employee going through the grievance process is disabled, reasonable adjustments may need to happen, such as allowing a companion from outside the normal permitted categories. Permitting companions of this nature can be a sensible policy for employers, as their presence may help put the employee at ease, and assist in getting to the facts of the matter under consideration. If English is not the employee’s first language and they have a known language problem, then having a companion present that can translate for them is strongly advisable but preferably find someone in-house if possible.
(8) There may be adverse legal consequences if an employee is refused the right to be accompanied. The employee can complain to an Employment Tribunal. Where the complaint is well founded, the Tribunal will order the employer to pay up to two weeks’ pay as compensation (subject to the statutory cap on the amount of a week’s pay). The right to be accompanied does not depend on the length of time an employee has worked for/with the employer.
(9) It is not necessary for an employee to make a request to be accompanied in writing, or within a specific timeframe. However, employees should be encouraged to make their requests clear, and provide their employer with the name of their chosen companion, as well as confirming which category of approved companion they fall in to.
(10) Unless contractually entitled, employees have no statutory right to be accompanied by a family member at a grievance meeting, unless the family member happens to be a work colleague or trade union official, in which case, they will be a permissible companion under the statutory right to be accompanied.
However, there is nothing to prevent an employer from allowing an employee to be accompanied by a family member, and it is likely to be appropriate in the case of a young person under 18 years old or a particularly vulnerable employee.
(11) The conduct of any companion may be considered as part of their normal duties, so blatantly disruptive or inappropriate behaviour should attract any appropriate action against the companion, as an employee, in their own right.
Finally, many employers are nervous at the prospect of holding a grievance meeting when the chosen companion is an accredited trade union representative. Don’t be would be our advice. Full time union officials are very experienced at these types of meetings, and tend to be refreshingly objective and non-emotive, which invariably helps the employer to get to the real heart of the matter. They will have also encouraged the employee to be clear about what they wish to achieve having raised the grievance.
If you feel that you need professional assistance to ‘balance things up’ then we would be happy to assist.
Our consultants would be pleased to advise you on any element of the issues arising from this newsletter.
