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A client has recently approached me regarding a formal disciplinary hearing they are trying to arrange with one of their employees. It’s a relatively minor issue of misconduct, and the employee wants to bring a particular companion in with them. Whilst they are a trade union official, so I understand they are permitted to attend, the employer really doesn’t like them. They have had problem with this official before and have found them to be rude and disruptive. Can they say no to this particular companion, and ask that the employee brings someone else?
As you rightly identify, under the Acas Code of Practice on Disciplinary and Grievance, when an employee is invited to a formal hearing that could result in a formal disciplinary outcome, such as a disciplinary warning, they should be permitted to bring in a companion. That companion must be either a work colleague or trade union official who is accredited to act as a companion, unless there are circumstances (such as disability or age) that mean an alternative companion might be appropriate, such as a parent or support worker.
When it comes to the choice of companion (within the above parameters) your client does not get a ‘say’ in the employee’s choice; their right is unfettered and cannot be limited. This was proven in the 2013 case of Toal v GB Oils Ltd, and again in Shoaib-Brown v IQVIA . In Shoaib-brown, there was also a disruptive companion whom the employer felt would derail the hearing. This was based on the companion’s previous behaviour in formal meetings. They therefore refused to allow the companion to attend both a grievance and a disciplinary hearing with the employee.
The employee, as is their right, brought a claim before an employment tribunal (ET) to challenge the decision to refuse their chosen companion. The award for this is two weeks’ pay per instance of refusal; in this case, it was two times, so four weeks’ pay. The ET made it clear that the employer did not have the right of veto over the employee’s companion. It also found that the employee had suffered a loss and detriment because of the refusal.
However, the companion’s behaviour was also criticised. The way they conducted themselves was inappropriate, including interrupting the meeting chair, being obstructive, and when challenged about their behaviour, telling the meeting chair ‘then leave’. Essentially the companion was rude, and the employee knew this when inviting them to come along. As a result, even though the employee had suffered a loss and detriment as a result of the decision to exclude the companion, the ET reduced the compensation by a week, and the employee got three weeks wages, totalling £1,541.07.
In light of the above, your client needs to weigh the risk of having the companion there, or refusing them and risking a claim. Don’t forget that whilst the award won’t be significant, your client needs to also factor in time and cost of attending tribunal and taking advice.
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