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Legal update: The right to be accompanied

Employers must be mindful of a recent amendment to the ACAS guidance on the right to be accompanied at disciplinary and grievance meetings

It is well established that all workers have a right to be accompanied at disciplinary hearings by a trade union representative/official or a fellow employee. While this entitlement is enshrined in both legislation and the ACAS code, ACAS’ non-statutory guidance was amended in January this year, to provide that employers are “free to” (although not obliged to) permit companions that extend beyond the strict statutory categories.

Indeed, with advances in technology triggering more mobile workforces and recent reports of a decline in public sector trade union membership, it appears that the statutory categories may no longer provide adequate options.

Professor Stevens v Birmingham University

The recent High Court ruling in Professor Stevens v Birmingham University has cast further doubt over the extent to which employers may reasonably restrict a worker’s chosen companion where he or she falls outside of the statutory requirements.

The case concerned a university professor who was suspended from his post following allegations of misconduct. The professor had dual employment with both Birmingham University and the Heart of England NHS Foundation Trust (“HEFT”). As it was the university that had initiated the investigation, they were responsible for conducting the investigatory meeting. In accordance with their disciplinary policy, they invited the professor to be accompanied to the meeting by either a fellow colleague or trade union representative. The professor declined the offer, instead requesting that he be permitted to bring a member of the Medical Protection Society (“MPS”). While HEFT’s policy would have permitted an MPS member to attend, as it was the university that was leading the investigation it had the discretion to refuse this request. Following the refusal, Professor Stevens commenced a claim in the High Court, who declared that the rejection had “severely damaged” the relationship of trust and confidence between employer and employee.

Guidance for employers

So what are the implications of the High Court’s ruling for employers?

Firstly it is important to recognise that the facts of Stevens were somewhat unusual. As well as his dual employment, there was a stark inequality in treatment with other participants (such as witnesses and the investigating officer) who were provided with a much greater choice of companions.

Despite this, it is important that employers do not ignore the sympathetic approach that is being accorded to workers. While employers will undoubtedly have concerns about opening the floodgates, requests should be carefully assessed on an individual basis particularly if the hearing in question could have serious career repercussions, as in this case. Where the worker is disabled or otherwise impaired, permitting them to be accompanied by a carer or social worker may well be regarded as part of the reasonable adjustments that the employer should in any case be making. By contrast, if the requested companion was, for example, a legal representative then a subsequent refusal might well be deemed reasonable in the circumstances. It is important that the requested companion remains just that – a companion and that their involvement is restricted to supporting rather than representing the worker.

Following the ruling, it is interesting to speculate as to whether we shall see a wider trend towards encouraging greater flexibility in dealing with worker’s requests to be accompanied.

Case law and guidance indicates that the balance is becoming increasingly tipped in favour of workers, with employers no longer simply safe to rely on the wording of their disciplinary policies to justify outright refusals.

Paul Killen is a partner at international legal practice Osborne Clarke