Here are answers to a handful of questions about the right to be accompanied which all came up at our webinar on grievances on 22 April. More to come this week.
The right arises under section 10 Employment Relations Act 1996 – where the worker (not just an employee) is invited to a grievance hearing and “reasonably requests to be accompanied“, then he is entitled to attend with a willing companion chosen by him who falls within section 10(3), as to which see question 5 below. It is also enshrined in the Acas Code on Disciplinary and Grievance Procedures and the accompanying guidance.
Historically it was thought that the “reasonably” as in “reasonably requests” applied to the choice of companion, meaning that the employer could legitimately exclude someone whose intended presence might obstruct the process, a known trouble-maker, someone currently unavailable on long-term absence or an employee with active or conflicting involvement in the subject matter of the grievance, for example. However, in Toal –v- GB Oils in 2013, the Employment Appeal Tribunal decided that “reasonably” actually applied to the request itself and that the employer had no right to exclude anyone falling within section 10(3), almost however irritating or counter-productive their attendance might be. There is little guidance as to what would make a request unreasonable for these purposes – perhaps its being delivered only at the very last minute before the hearing, in braille or some other language the worker knows that the manager does not speak, or on one of those party balloons with legs. Like many rights around worker representation, the fact that it is asked for aggressively or insultingly (“I don’t trust you if there are no witnesses”) probably won’t be enough to make the request unreasonable.
For section 10 purposes, a grievance only triggers that right where it relates to alleged non-compliance by the employer with some legal duty (statutory or contractual) to the worker. That would strictly allow you to deny a companion to someone whose grievance is more of the classic “nobody loves me, it’s not fair” genre. However the line between it’s not fair on the one hand and your duties relating to trust and confidence, discrimination of health and safety on the other is just not worth even looking for, especially as you are only likely to find out that you missed it after the event. So you should assume that section 10 applies irrespective of the subject matter of the complaint.
5. Should we accept an employee’s request to be accompanied by an external trade union official rather than the internal rep?
Yes. Section 10(3) includes both (a) a person employed by a trade union of which he is an official; and (b) an official who has been certified by the union as having experience or training in acting as worker representative in grievance meetings. Therefore, if your employee’s chosen companion is an official employed by the union, you have no option but to agree. It may be interesting to understand why the internal person is non grata in case it is a sign of some shop-floor problem, but the worker is not obliged to tell you and it doesn’t affect your obligation to accommodate hm.
6. What meetings within the grievance process does the trade union rep have the right to attend?
Under section 10, only those attended by the requestor, so not meetings concerning the grievance with third parties or potential witnesses. There is a potential distinction at law between a grievance hearing where section 10 applies and an investigation meeting where it does not, but that line is extremely thin. Section 10(2B)(a)(i) —hmm, catchy! — requires that the companion is allowed to “put the worker’s case”. That is so close to being part of the employer investigating it that the point is simply not worth taking.
7. If we allow the employee to bring his lawyer to the grievance hearing, should you ask for written questions or points to be covered in advance of the meeting?
No. At a normal grievance meeting it will be for the employee or his companion to do most of the talking – at that hearing it is for him to present his case, not for the employer to rebut it. If there are questions concerning what is complained about or how it is evidenced, these should usually be from the employer to the employee, not the other way around. If the lawyer nonetheless goes on the offensive and starts some purported cross-examination of the managers present, then don’t think you have to deal with those points there and then. Note them and promise a response in due course so far as those questions are relevant to the outcome of his client’s grievance. In other words, do exactly the same as you would do if the employee himself, or some other non-legal companion, tried the same approach.
As to points to be covered, since you will probably not be responding to them at the hearing, you do not need to see them in advance. Your only requirement is to come out of the meeting with a list of the allegations being made which is both comprehensive and detailed enough as to the facts relied upon to allow you to move on with your investigation.