The right to be accompanied

Analysis of the recently introduced right for workers to be accompanied in grievance and disciplinary hearings.

This feature was written and researched by Stephen Blunt of Clyde & Co solicitors. Copyright to be retained by author.

"Most employers treat people fairly, but a minority do not. The law should protect employees from intimidation, and assist those who might have difficulties in representing themselves."

(Fairness at work White Paper, May 1998, Cm 3968, para. 4.28)

"The statutory right to be accompanied applies to all workers, not just employees under a contract of employment. "Worker" is defined in the legislation and includes anyone who performs work personally for someone else, but is not genuinely self-employed, as well as agency workers and home workers, workers in Parliament and Crown employees other than members of the armed forces. There are no exclusions for part-time or casual workers, those on short-term contracts or for people who work overseas (subject to any jurisdictional rules)."

(para. 51 of the revised ACAS Code of Practice on Disciplinary and Grievance Procedures, September 2000)

Sections 10-15 of the Employment Relations Act 1999 ("the 1999 Act") confer on "workers" in the United Kingdom a new legal right to be accompanied in disciplinary or grievance hearings by a trade union official or fellow worker of their choice. The provisions came into force on 4 September 20001, and cover a larger section of the workforce than those narrowly and traditionally defined as "employees" under contracts of employment.

SETTING THE SCENE

Previously the only obligation on employers to allow accompaniment stemmed from the ACAS Code of Practice on Disciplinary Practice and Procedures in Employment ("the old Code"), the most recent version of which came into effect on 5 February 1998. Paragraph 10(g) of that Code stated that employers' disciplinary procedures should "give individuals the right to be accompanied by a trade union representative or by a fellow employee of their choice". That Code has now been superseded by a fully revised ACAS Code of Practice on Disciplinary and Grievance Procedures ("the revised ACAS Code"), which came into effect on 4 September 20002 together with the new accompaniment provisions. Indeed, those provisions are intended to put para. 10(g) of the old Code onto a statutory footing3, and their meaning and application is amplified in section three of the revised ACAS Code.

While a Code of Practice is not, of itself, legally binding, it must be taken into account by employment tribunals in determining any question to which it seems relevant. This includes the issue of whether an employer has acted reasonably in dismissing an employee (see for instance Lock v Cardiff Railway Co. Ltd4). Even under the old Code, therefore, a refusal to afford accompaniment could disadvantage an employer in unfair dismissal proceedings, particularly where the refusal was not in accordance with the employer's own internal procedures.

A union perspective

Representation by trade union officials has, in the past, been an issue largely only where a trade union is recognised by the employer. Depending on the applicable procedures, lay union representatives are usually involved in the early stages, perhaps with the facility for a union full time official to appear on appeal. Where a trade union is not recognised, it has been common practice for an employer to refuse an employee representation by a union official. If an employee is entitled to accompaniment at all, perhaps under an internal disciplinary procedure, it is usually restricted to a fellow employee.

The 1999 Act's provisions will, for the first time, allow a trade union official to enter the employers' premises to, at least, accompany and support (though not, strictly speaking, to represent - see p.9 below) a union member, if the member so requests, even where a trade union (or that particular union) is not recognised by the employer. If the employer fails to accede to the request to be accompanied made by a worker (which need not be made in writing), a tribunal award of up to two weeks' wages (at the statutory maximum, currently £230 per week from 1 February 2000) can be awarded against the employer (see pp.9-10 below). Perhaps of greater significance for employers, however, is the increased probability that tribunals will view a refusal of accompaniment as a central factor in determining the fairness of a dismissal if that refusal is in breach of the statutory right.

The practical connection to recognition

It is certain that trade unions will see the new right of accompaniment as complementary to the new statutory right to recognition enacted through s.1 and Schedule 1 of the 1999 Act (see Statutory trade union recognition (1): basic procedure). One reason for the steady decline in trade union membership and collective bargaining over the past 20 years has been the ease with which hostile or ambivalent employers have been able to prevent trade union members enjoying the membership benefits of professional representation in the workplace. It has proved difficult for trade unions to recruit on the basis only of fringe benefits such as financial services and legal support. Trade unions have often been frustrated in their attempts to build membership to a critical mass as part of a thrust for recognition.

The new right to accompaniment will allow trade unions for the first time to promote professional representation as a sound reason for workers to join a trade union even though the union does not enjoy recognition. The benefit of professional trade union representation is likely to be seen as a distinct advantage when compared to the assistance of a fellow, untrained and inexperienced employee. The new right could provide trade unions with the necessary platform to increase membership numbers within workplaces towards the levels required to trigger an application for statutory recognition.

Existence of procedure a pre-condition?

Detailed consideration is given below (pp.6-8) to the nature, definition and scope of grievance and disciplinary hearings to which the new right will apply. But what if the employer does not have any formal grievance or disciplinary procedures? It has been stated in both the Explanatory Notes to the original Employment Relations Bill ("the Bill") and to the 1999 Act that nothing in the Act will compel an employer to introduce a formal procedure where one does not already exist (paras. 152 and 193 respectively).

While this is undoubtedly true in principle, a number of commentators have concluded that this means that the complete absence of a procedure (or the exclusion of a worker from any procedure that does exist) will necessarily negate the right to be accompanied. This interpretation may, however, be doubted for a number of reasons:

  • Section 3 of the Employment Rights Act 1996 ("the ERA") obliges employers employing 20 or more employees to inform those employees of any disciplinary procedures or rules that may be applicable to them. They must also specify (by description or otherwise): a person to whom employees can apply if dissatisfied with any disciplinary decisions relating to them; a person "to whom the employee can apply for the purpose of seeking redress of any grievance relating to his employment"; and the manner in which any such application should be made. Even those employing fewer than 20, however, must still advise employees of the identity of the person to whom grievances should be addressed and the manner in which they should be raised.

  • Furthermore, case law indicates that all employees enjoy an implied term in their contracts that the employer must deal reasonably with grievances raised by the employee (see WA Goold (Pearmak) Ltd v McConnell and another5). This has been described as an implied contractual grievance procedure existing within all employees' contracts. If, faced with this contractual obligation, the employer holds a meeting to deal with a grievance, the employee will enjoy the right to be accompanied provided the grievance raised concerns the performance of a duty by the employer (see further p.8 below).

  • Finally, in the Bill as originally drafted, a disciplinary or grievance hearing (whether in relation to employees or the broader category of workers) was expressly defined as a hearing "held in the course of a disciplinary or grievance procedure established or adopted by an employer" (see clause 14(4)). This express requirement disappeared during the Bill's progress through Parliament, and is nowhere to be found in the definition of disciplinary and grievance hearings ultimately enacted in s.13(4) and (5) of the 1999 Act (see pp.6 and 7 below). It is thus at least arguable that the sole focus is now on the nature and substance of any hearing or meeting that actually takes place, rather than whether it is called under or forms part of a formal existing procedure. To this extent, the Government's consistent claim6 that it was not its "intention to oblige employers to permit accompaniment [at] hearings which do not form part of a procedure" may turn out to have been somewhat misleading. Employers are therefore advised to err on the side of caution, and to permit workers to exercise the right to be accompanied in all but the most trivial cases.

    WHO CAN SEEK ACCOMPANIMENT?

    Workers broadly defined may rely on the right to be accompanied. Section 13(1) of the 1999 Act thus defines a "worker" as an individual who is:

  • a worker within the meaning of s.230(3) of the ERA;

  • an agency worker;

  • a home worker;

  • a person in Crown employment (other than a member of the naval, military, air or reserve force of the Crown); or

  • a person employed as a member of the staff of either of the houses of parliament.

    The extension of rights to "workers" rather than "employees", and therefore beyond the present limits of protection for rights such as unfair dismissal and redundancy payments, is a trend to which the present Government seems firmly committed. The Working Time Regulations 1998 ("the WTR") reg. 2(1)) apply to "workers" using the same wording as s.230(3) of the ERA, as does the Minimum Wage Act 1998 (s.54(3)). Furthermore, s.23 of the 1999 Act allows the Secretary of State to make provision for other statutory rights to be conferred on "workers" rather than "employees". This may be the subject of further consultation in late 2000. The Government has expressed the intention that basic statutory rights should not be restricted only to those who enjoy contracts of employment but should apply to everyone who works for someone else7.

    Worker status

    Section 230(3) of the ERA defines a "worker" as:

    an individual who has entered into or works under (or where the contract has ceased, worked under) -

    (a)a contract of employment; or

    (b)any other contract, whether express or implied and (if it express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

    A contract of employment is defined as a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing (see s.230(2) of the ERA).

    The definition of "worker" is therefore wider in scope than the definition of an "employee". It occupies the grey area between "employee" and the genuinely "self-employed". The former certainly falls within the definition, the latter does not. The genuinely self-employed will be excluded from worker status as they do not enjoy a personal relationship with the hirer of their services. However, the outcome is not always clear-cut. In Lane v Shire Roofing Co (Oxford) Ltd8, for example, an individual roofing contractor who worked on a "payment by job basis" with his own equipment was still confirmed as an employee by the Court of Appeal. It should be borne in mind, however, that this was a personal injury case and did not concern the statutory definition in an employment context.

    Guidance from other jurisdictions

    Some guidance might be found here by an examination of previous decisions made under other legislation that has endowed rights on a wider group of the workforce than just employees. The Industrial Relations Act 1971 ("the IRA"), the Sex Discrimination Act 1975 ("the SDA"), the Race Relations Act 1976 ("the RRA") and, more recently, the Disability Discrimination Act 1995 all apply not only to employees but also to others under a contract, "of service or of apprenticeship or a contract personally to do any work".

    In Mirror Group Newspapers v Gunning9, the question of the dominant purpose of the contract was held to be the relevant test. In that case, an allegation of unlawful sex discrimination was made when a newspaper company refused to allow the daughter of her deceased father to take over the area distribution of the newspaper. For the claim to be successful, it was necessary to show that the distributorship came within the definition of "employment" in s.82(1) of the SDA.

    The employment tribunal and EAT found that it did. However, the Court of Appeal disagreed. The tribunal should have considered (a) whether there was an obligation by one contracting party to execute personally any work or labour and (b) whether that was the dominant purpose of the contract. On the facts, this latter requirement was not satisfied, and the applicant's claim failed.

    One case considered by the Court of Appeal in Gunning was that of Broadbent v Crisp10 which dealt with the definition of "worker" under the IRA. In that case the central issue was whether the contractual relationship was governed more by the requirement that the individual perform the service him or herself rather than the individual being free to delegate performance to another. If the former, the individual would be a worker. If the latter, he or she would not. As Sir Hugh Griffiths stated in the decision of the National Industrial Relations Court:

    No one test will be conclusive, but if the personality of the contracting party is found to be of importance in the formation of the contract it is a strong pointer towards the conclusion that his personal performance of the contractual obligations is envisaged by the contract.

    In this context, it is perhaps possible to see what was meant when it was stated in the Fairness at work White Paper that these basic rights should be available to all who work for another person but not to those who are genuinely individually self-employed (para. 3.18). If evidence indicates that an individual was hired, he/she will be a worker or perhaps even an employee. If evidence shows that the hirer engaged a service provider only to carry out a specific task, without any reference to the personal, he/she will be self-employed. The central factor in the equation is the obligation on the individual to render personal service.

    Effect of substitution clause

    Another recent decision of the Court of Appeal has confirmed this general approach. In Express & Echo Publications Ltd v Tanton11, Mr Tanton was engaged as a driver on an ostensibly self-employed basis. His contract stated: "In the event that the contractor is unable or unwilling to perform the services personally, he shall arrange at his own expense entirely for another suitable person to perform the service." Mr Tanton refused to sign it but continued to work in accordance with its terms even, on occasion, using a substitute driver.

    He later brought a claim to an employment tribunal complaining that he had not been provided with a written statement of particulars, thereby seeking to confirm his employee status. The employment tribunal chairman concluded that the factors pointing to Mr Tanton being an employee outweighed the factors which pointed to self-employed status. The EAT dismissed the employer's appeal on the ground that it raised no arguable point of law.

    However, the Court of Appeal ruled that the ability to provide a substitute was "inherently inconsistent" with employee status. A contract of employment must necessarily contain an obligation on the part of the employee to provide services personally as an "irreducible minimum".

    The Court of Appeal concluded that Mr Tanton must, on the facts of the case, have been a self-employed contractor. As such, it seems to rule out the possibility that he might have been a worker within the statutory definition (though, of course, the matter was not directly addressed). It is the width of these parameters within which individuals are considered to be self-employed, that reduce the numbers protected by the new rights.

    Casual workers

    Those potentially most at risk of being excluded from important statutory rights are casual workers. There are two problems here for such workers - one legal and one practical. First, like Mr Tanton, they might be found to be self-employed. Secondly, even if they can avoid the substitution clause that tripped up Mr Tanton (and that may become more popular in temporary employment contracts as a result), they are often engaged on a succession of short contracts as required. They do not enjoy a global or umbrella contract that maintains the relationship between periods of work. Most workers falling into this category are also excluded from disciplinary or grievance procedures, thus potentially rendering the right of accompaniment irrelevant.

    These weaknesses in respect of casual workers were amply demonstrated in the recent decision of the House of Lords in the case of Carmichael and another v National Power12. Two female tour guides were engaged to show visitors round the two Blythe power stations. Their contracts referred to their employment being "on a casual as required basis". They requested a statement of the essential terms of the contract of employment under s.11 of the ERA and, being refused, both submitted applications to an employment tribunal in the following terms:

    I have been employed since 9 March 1989 and I regularly work in excess of 25 hours per week. The respondent pays my tax and insurance contribution. I am provided with a uniform and I have full use of company vehicles for business use. I work for no other employer and I am not entitled to send along a substitute to perform my duties. I therefore claim that I am entitled to a contract of employment.

    The employment tribunal found that their case foundered, "on the rock of absence of mutuality". In other words, when not working as tour guides as required, they did not enjoy an ongoing contractual relationship with the employer. Instead they were party to a series of successive ad hoc contracts.

    The tribunal made this decision on the basis of (1) the language of the documentation, (2) the way in which the relationship had operated and (3) the evidence from the parties as to how it had been understood. The EAT refused to interfere with the decision of the employment tribunal, and the tour guides appealed to the Court of Appeal.

    The Court of Appeal (by a majority, Lord Justice Kennedy dissenting) overturned the tribunal decision and held that the relationship did indeed involve the necessary "mutuality of obligation". Lord Justice Ward stated:

    There was mutuality because there was an obligation to accept and perform some reasonable amount of work for the power station who were to make reasonable allocation of the work between the guides whom they had engaged.

    In other words, the facts showed an implied contractual obligation on the company to offer work as available and on the tour guides to accept that work. Despite being employed on zero-hours contracts, working only as required, the women were found to be employees under a global contract of mutuality. Indeed, Lord Justice Chadwick went so far as to say that, on the facts of the case, it would be "wholly artificial" for the applicants to be treated as independent contractors. National Power appealed to the House of Lords, the decision being delivered on the 18 November 1999.

    It had been hoped that the House of Lords would take the opportunity to carry out a full review of the case law and lay down firm guidance for the lower courts. Rather disappointingly, however, they did not do so. In finding for National Power and overturning the decision of the Court of Appeal, the Lord Chancellor, in delivering a very short lead judgment, reinstated the decision of the employment tribunal as the "correct approach". In the absence of any firm and clear lead from the House of Lords, the comprehensive dissenting judgment of Kennedy LJ in the Court of Appeal (with which the Lord Chancellor agreed) would now seem to represent the leading authority of the present state of the law in this area.

    Practical difficulties

    While the question of whether the tour guides might be classed as "workers" was not addressed for obvious reasons, it seems very likely that this would be the case, at least for the duration of each separate "ad hoc" contract. This, of course, re-emphasises the practical difficulties of a right to accompaniment where the worker is offered only a succession of short duration separate contracts.

    First, the employer can decide whether such a worker is to be subject to disciplinary or grievance procedures at all. The two tour guides in Carmichael were specifically excluded from such procedures by National Power. The likelihood elsewhere is that such workers will now be omitted even if they weren't before. Neither can workers rely on an implied obligation that the employer will deal reasonably with grievances which might require the holding of a meeting at which accompaniment can be requested. The implied term to deal reasonably with grievances established in WAGoold (Pearmak) Ltd v McConnell and another (see above and p.7 below) applies only to employees, stemming from the statutory right to receive contractual information in s.3 of the ERA. The House of Lords has now made clear that casual workers like Mrs Carmichael are unlikely to be employees and, as such, are unlikely to gain much benefit from the new rights of accompaniment.

    Even if casual workers are fortunate enough to be expressly subject to grievance and disciplinary procedures, there seems little to prevent an employer terminating an ad hoc contract (perhaps prematurely) before a disciplinary or grievance matter has been resolved with a meeting that might allow the right to accompaniment. Moreover, the worker could not challenge this decision because, not being an employee, he/she would not be able to claim unfair dismissal.

    One might then look at the protection from being subjected to any detriment under s.12 of the 1999 Act. However, the ability to claim unfair dismissal under s.12(3) applies only when the principal reason for dismissal is that the worker "exercised or sought to exercise" the right to be accompanied, postpone or to accompany another. If the worker is not "required or invited by his employer" (s.10(1)) to a hearing, it seems the right to be accompanied will not apply and dismissal will not be an issue (see p.8 below).

    Finally, will casual workers (or relatively secure employees for that matter) really insist on the right to be accompanied when faced with an employer openly hostile to trade unions and/or the idea of accompaniment generally? It is important to note that the worker must request accompaniment to trigger the right. The employer need not volunteer the information. Will workers even want to take the chance and test the views of their employer in the real world? Even if they are fortunate enough to enjoy the right of accompaniment, casual workers like Mrs Carmichael, surviving from contract to contract, day to day, might consider a request for accompaniment by a trade union official as a potentially serious career-limiting move.

    Apprentices and trainees

    Apprentices certainly enjoy "worker" status. Section 230(2) of the 1996 Act defines those with a contract of employment as including apprentices. For more on the definition of "apprentice" see the recent Court of Appeal decision of Edmonds v Lawson QC and others13, in which a decision of the High Court that a pupil barrister was an apprentice and thereby qualified for the statutory minimum wage was overturned.

    Trainees, as opposed to apprentices, on the other hand, are unlikely to be found to be party to a contract of employment. In Wiltshire Police Authority v Wynn14, it was held that where the primary object of the relationship was that of training, there was no contract of service at all. This view was supported for non-apprentices by the Court of Appeal in Edmonds (above).

    Faced with the same difficulty in the WTR, and for avoidance of doubt, the Government introduced reg. 42 which specifically provided that those engaged in training contracts would be protected. This avoided difficulties such as those evident in Daley v Allied Suppliers Ltd15. In that case, Miss Daley was a trainee on a Youth Opportunities Programme who made a complaint to an employment tribunal that she had suffered racial discrimination. The tribunal held that they could not hear her complaint since she was not "employed" by the company within the meaning of the Act. She appealed against the decision.

    Section 78 of the RRA defines "employment" as employment under a contract of service or apprenticeship or a contract personally to execute any work or labour. She argued that she was employed by the company within the meaning of the Act and entitled to have her complaint heard. The EAT supported the decision of the employment tribunal. It was held that even if a contract did exist, it was a contract for the training of the applicant not a contract of employment or a "contract personally to execute any work or labour" within the meaning of s.78. The primary purpose of the contract was not to establish a relationship of employer and employee but to enable the applicant to acquire certain skills and experience.

    As the definition of "employee" in the RRA is similar to the definition of "worker" in the WTR, the logic of including reg. 42 in the latter is clear. No such similar provision is provided in s.13 of the 1999 Act in respect of the right of accompaniment and it must be doubtful whether trainees (who are not apprentices) will fall within the definition of "worker" for these purposes.

    Agency workers

    Section 13(1)(b) of the 1999 Act specifically identifies "an agency worker" as a worker for the purposes of the right to accompaniment. Under s.13(2), the right is available when an individual (the agency worker) is supplied by an agent to carry out work for another (the principal) even though it might not give rise to a contract (as a worker) falling within s.230(3) of the 1996 Act. Provided the contractual relationship is not one in which the agency worker is providing professional or business services to a client on his or her own account, the right to representation will apply as if there was a contractual relationship between the worker and either the agent or the principal. Thus, an agency worker can claim the right to be represented at a grievance or disciplinary meeting arranged by the agency or the principal.

    Home workers

    Section 13(1)(c) of the 1999 Act applies the protection of ss.10-12 to any "home worker". This is defined in s.13(3) as an individual who enters into a contract for work to be carried out other than under the employer's control or management. Provided the contractual relationship is not one in which the home worker is working as part of his/her own business or professional undertaking, the person providing the work will be the employer for the purposes of the right to be accompanied.

    Note: The right to be accompanied does not apply to a person employed for the purposes of the security service, the secret intelligence service or the government communications headquarters (see s.15 of the 1999 Act).

    DISCIPLINARY AND GRIEVANCE HEARINGS DEFINED

    Whether or not the employer has an existing procedure in place, the right to be accompanied will not apply to every hearing dealing with disciplinary matters or grievances.

    Disciplinary hearings

    Section 13(4) of the 1999 Act defines a disciplinary hearing as any hearing that could result in:

    (a)the administration of a formal warning to a worker by his employer,

    (b)the taking of some other action in respect of a worker by his employer, or

    (c)the confirmation of a warning issued or some other action taken.

    The last of these criteria was introduced as an amendment during the passage of the Bill through Parliament, in order to ensure that the right of accompaniment is available during hearings at which a disciplinary decision is being challenged on appeal16.

    Scope of coverage

    The scope of disciplinary proceedings covered is relatively wide-ranging. Speaking during the Committee Stage of the Bill in the House of Lords, Lord Simon attempted to clarify the Government's thinking: "it is not our intention to permit accompaniment at hearings without the immediate threat of disciplinary action"17. It is this important distinction that is likely to determine the right to be accompanied. Is it an informal chat or something leading to formal action against the worker? As Lord Simon went on to say, "counselling interviews and exploratory talks are excluded, as are trivial matters"18.

    But if some element of formality is present it is likely to be enough to trigger the right to accompaniment. In respect of disciplinary meetings, the coverage seems somewhat wider than for grievance hearings. Articulating the Government's position during the (House of) Commons Committee Stage of the Bill, Ian McCartney MP stated19:

    Employers can take many forms of disciplinary action. They can suspend, dismiss, demote, relocate or fine. They can also issue a formal warning or simply put a note on a worker's file ... A note on a file can have a significant impact on employees and so we believe that the right to be accompanied should be available.

    Nature of hearings crucial

    This approach is reflected in the revised ACAS Code, which states: "Whether a worker has a statutory right to be accompanied at a disciplinary hearing will depend on the nature of the hearing." (para. 53). It also confirms that the right is not expected to apply where employers choose to deal with a problem "in the first instance by means of an informal interview or counselling session", as long as such meetings do not result in a formal warning being administered or other action (for example, "suspension without pay, demotion or dismissal") being taken (para. 53 read with para. 54). This might involve a "one-to-one" talk with a supervisor or manager, for example. If any action follows from it, however, even an oral warning "that will be placed on the worker's record", the right of accompaniment will apply.

    Indeed, the revised Code goes on to warn that "employers should not allow an investigation into the facts surrounding a disciplinary case to extend into a disciplinary hearing. If it becomes clear during the course of the informal or investigative interview that formal disciplinary action may be needed then the interview should be terminated and a formal hearing convened at which the worker should be afforded the statutory right to be accompanied." (para. 53) This underlines the fact that it is the nature of the meeting or hearing that is paramount, and not whether it takes place as part of a formal existing disciplinary procedure. If a meeting or hearing takes or assumes the form of a disciplinary hearing in terms of its likely or potential disciplinary consequences, it is submitted that the right to be accompanied should apply.

    Employers would once again be well advised to err on the side of caution, and afford the right to be accompanied unless it is absolutely clear that no action is likely to be taken against the worker.

    Avoidance of hearings ill advised

    In the course of formal disciplinary proceedings, it might occur to an employer to attempt to side-step the need for a disciplinary interview altogether, thereby avoiding the need for accompaniment. The sanction of a formal letter of warning might be issued where dismissal is not thought imminent. This would be unwise if the sanction might in future be used to justify dismissal in the event of repeat behaviour. Dismissal connected to a previous disciplinary sanction issued without the employee being given the opportunity to state his or her case will increase the chances of a finding of unfair dismissal. The employer will not be in compliance with the revised ACAS Code.

    Compliance with that Code is an important factor in determining the fairness of a dismissal. In Lock v Cardiff Railway Co Ltd, Morison J, presiding in the EAT, emphasised the respect with which employment tribunals should regard the provisions of the old ACAS Code, even though the parties themselves might not make reference to it. Paragraph 10(f) of the old Code provided that employers should "provide for individuals to be informed of the complaints against them and to be given an opportunity to state their case before decisions are reached". The revised Code now includes similar advice in para. 9.

    In McLaren v National Coal Board20, the Court of Appeal highlighted the importance of ensuring that employees are given a proper hearing before dismissal even in the most extreme of circumstances, in that case during the "warfare" of a major industrial dispute. Without such a hearing, a dismissal will almost always be unfair.

    While an employer is undoubtedly wise to tread carefully on matters of accompaniment when dealing with employees who might claim unfair dismissal, this will not generally be the case in respect of other "workers" who are not able to claim unfair dismissal. If an individual cannot make such a claim, an employer might feel less concerned. This might induce an employer to avoid disciplinary hearings altogether and simply issue warning letters. It should again be noted, however, that the Government has reserved the right, under s.23 of the new Act, to introduce regulations to allow those satisfying the wider definition of "workers" to claim unfair dismissal.

    Grievances only over legal duties?

    A grievance hearing is defined by s.13(5) of the 1999 Act as:

    a hearing which concerns the performance of a duty by the employer in relation to a worker.

    The crucial issue here is to determine the type of duty that can be the subject of a grievance. Lord Simon expressed the Government's clear and consistent opinion21: "The form of words we have used on the face of the Bill ensures the right to be accompanied at a grievance hearing applies only to legal duties owed by an employer to his workers; that is, to his statutory, contractual or other legal duties, including potentially tortious duties. It does not involve any loose or informal obligation that the employee might feel is owed to him ..."

    That view is mirrored in the revised ACAS Code. This states that a duty within s.13(5) "means a legal duty arising from statute or common law (eg contractual commitments)", although it accepts that ultimately only the courts can decide what sort of grievances fall within the statutory definition and that the individual circumstances will always be relevant. It nevertheless suggests, for instance, that:

  • "Grievances arising out of day-to-day friction between fellow workers" are unlikely to concern a legal duty and thereby trigger the right of accompaniment unless the friction develops into harassment or bullying, as this would arise out of the employer's duty of care.

  • Moreover, a request for a pay rise (or any other new term or condition of employment) to which the worker is not already contractually entitled is also likely to fall short unless it concerns an equal pay claim or where a refusal might be otherwise discriminatory.

  • Similarly, a grievance registered following the rejection of a promotion request by a worker is unlikely to attract the right of accompaniment unless it concerns, say, the application of a contractual grading or promotion exercise or has discriminatory consequences.

  • Finally, a grievance over car-parking facilities to which a worker is not contractually entitled will probably not attract a right to be accompanied to any hearing. If, however, the worker is disabled and needs parking facilities in order to attend work the employer's duty of care becomes relevant and the right to accompaniment is likely to apply (see generally para.55 of the revised Code).

    In short, it seems that the right to be accompanied is intended to apply only to grievances concerning allegations of a breach of contractual terms and conditions or contractual procedures (express or implied) or allegations that the employer has breached a statutory, common law or other legal obligation or duty (including, presumably, an obligation or duty arising out of administrative law).

    By purporting to exclude non-legal matters from the accompaniment provisions, the Government has sought to resist a definition of grievance hearing that might have allowed workers to pursue pseudo-collective matters by raising individual grievances. For instance, where a trade union was not recognised, union activists might have tried to raise individual grievances on matters such as improving pay and conditions and, in so doing, insist that a trade union official might accompany them. The individual grievance might then have been widened to apply to all workers employed.

    On the other hand, it remains the case that the form of words used in s.13(5) of the 1999 Act does not refer explicitly to a legal duty as a prerequisite. This contrasts with, for example, the express statutory reference to suspected failures to comply with a "legal obligation" under the whistleblowing provisions of the ERA (see s.43B(1)(b). It may be that the position under the accompaniment provision will not prove to be as clear-cut as the Government and the revised ACAS Code suggest.

    Implied grievance procedures

    As we noted at pp.2-3, while it has been stated by government representatives that the new accompaniment provisions will not enforce disciplinary or grievance procedures where they do not already exist, the absence of formal grievance procedures will not necessarily allow an employer to avoid the provisions. Here we return to consider the EAT's decision in WA Goold (Pearmak) Ltd v McConnell and another. This case will be of particular interest to those employers who do not appear to have a formal grievance procedure within which an employee might ask to be accompanied.

    In 1992, Mr McConnell and a colleague attempted to raise the issue of a change in sales practices which had resulted in them sustaining a reduction in commission earnings. Despite several attempts to register their grievances with the managing director and chairman, they were unsuccessful in getting the matter resolved. Eventually they left and claimed constructive dismissal.

    An employment tribunal concluded that the employer's failure to establish and implement a grievance procedure amounted to a serious breach of the employees' contracts of employment. The tribunal also found the employees to have been unfairly dismissed. The employer appealed to the EAT.

    The EAT dismissed the appeal. Morison J stated:

    Parliament considered that good industrial relations requires employers to provide their employees with a method of dealing with grievances in a proper and timeous fashion ... That being so, the industrial tribunal was entitled, in our judgement, to conclude that there was an implied term in the contract of employment that the employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have.

    An employer's attempt to avoid an employee's right of accompaniment because of the absence of a formal grievance procedure is likely to be defeated by the fact that all employers are obliged to deal with the grievances of their employees fairly or be in breach of contract. In other words, an implied contractual grievance procedure is always available (to employees rather than workers). If the employer holds a meeting to deal with the grievance, the employee will enjoy the right to be accompanied provided the grievance raised concerns the performance of a legal duty by the employer as explained above.

    Ironically, the facts in McConnell seem to suggest that the applicants would not have enjoyed the statutory right to be accompanied on the basis of the grievance raised. Mr McConnell and his colleague complained of their declining commission payments which were related to a change in sales practice. The changed practice was apparently accepted as lawful. It is therefore difficult to see a breach by the employer of a duty that would have triggered the right to accompaniment.

    SCOPE OF THE INDIVIDUAL RIGHT

    Section 10(1) of the 1999 Act sets out the basic right to be accompanied during grievance and disciplinary hearings of the type outlined above. It applies where a worker -

    (a)is required or invited by his employer to attend a disciplinary or grievance hearing; and

    (b)reasonably requests to be accompanied at the hearing.

    There are three points of particular interest here. First, the worker must be required or invited to attend the meeting by the employer. Ian McCartney MP explained that the reference to an invitation was intended to take account of the fact that employers "do not usually insist that workers attend meetings if grievances are under discussion"22.

    Secondly, the onus is on the worker to ask or make a request to be accompanied. The request may be verbal or written, but there is no duty on the employer to tell the worker of the existence of the right. This means the worker, if he/she wants a trade union representative to attend, will often effectively be telling the employer of his or her trade union membership. Considering that the right is intended to introduce fair procedures into areas uninhabited by trade unions, and where employers might well be hostile to trade unions, workers might think twice before identifying themselves as union members.

    Thirdly, the parameters of a "reasonable request" are unclear. It raises the prospect of an employer challenging the worker's request for accompaniment because the subject to which it relates is insufficiently serious. Those seeking guidance on the point from the revised ACAS Code will be disappointed. Its general advice is: "It will be for the Courts to decide what is reasonable in all the circumstances." (para. 56). Until case-law is available on the point, therefore, employers would be wise to allow accompaniment where requested in all marginal cases. The alternative is to run the risk of potentially costly tribunal claims.

    Choosing a companion

    Once the worker makes the request under s.10(1), s.10(2) states that the employer "must permit" him or her to be accompanied at the subsequent hearing by a single companion who:

    (a) is chosen by the worker and is within s.10(3);

    (b) is to be permitted to address the hearing (but not to answer questions on behalf of the worker); and

    (c) is to be permitted to confer with the worker during the hearing.

    Section 10(3) provides the statutory definition of the person who can accompany the worker. This can be either:

  • a union official employed by the union as defined in s.119 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the TULR(C)A");

  • an official (not employed by the union) who is "reasonably certified in writing" by the union as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings; or

  • another of the employer's workers.

    A lawyer is not permitted unless he or she falls into one of the above categories.

    Within these parameters, the worker is in principle entirely free to choose the identity of his or her companion. This is confirmed by the revised ACAS Code, which states: "There is no test of reasonableness associated with the choice of companion and workers are therefore free to choose any one fellow worker or trade union official." (para.56)

    The revised Code nevertheless goes on to warn: "... in making their choice workers should bear in mind that it would not be appropriate to insist on being accompanied by a colleague whose presence would prejudice the hearing or who might have a conflict of interest. Nor would it be sensible for a worker to request accompaniment by a colleague from a geographically remote location when someone suitably qualified was available on site." (see again para. 56) It thus seems from the revised Code that such considerations may in fact affect the overall reasonableness of the request to be accompanied.

    Union representation

    Interestingly, the revised ACAS Code also provides some guidance where the person seeking accompaniment is a member of a union other than that recognised by the employer:

    ... where a trade union is recognised in a workplace it is good practice for an official from that union to be selected to accompany the worker at a hearing. (para. 58)

    While this proposal might be put to the worker, s.10(2)(a) of the 1999 Act makes it clear that the worker has the final say as to the identity of the companion. Indeed, to be fair to those who drafted the revised Code, this is made clear earlier in para.58: "Workers are free to choose an official from any trade union to accompany them ... regardless of whether the union is recognised or not." If the worker is a member of a union that is not recognised by the employer, he or she may choose a companion from his or her own union. If this is refused, a tribunal claim might follow. Similarly, a worker who is not a member of a union may nominate an official of any union as his or her companion, assuming that the union is willing so to act.

    Section 119 of the TULR(C)A defines a union official as an officer of the union, branch or section or a person elected or appointed under the rules of the union to represent members. The Explanatory Notes to the 1999 Act make it clear that there is no intention by Government to place a duty on a trade union to provide a companion (para.193). Whether to provide a companion and who to send (provided the person is an "official" as defined) is purely a matter for the trade union (as is made clear in para. 59 of the revised Code).

    Role of companions

    As the revised Code underlines, "the chosen companion has a statutory right to address the hearing but no statutory right to answer question on the workers behalf" (para.64 distilling s.10(2)(b) and (c) of the 1999 Act - see p.8 opposite).

    On the face of it, this is a rather limited role falling short of representation. During the Commons Committee Stage on the Bill, for example, Ian McCartney said23 that the Government had "made it clear that the accompanying person cannot represent the worker - cannot answer questions on his or her behalf. The accompanying person is there to advise and support, not to intervene between employer and employee."

    The revised Code, however, appears to go somewhat further in suggesting: "Companions have an important role to play in supporting a worker and to this end should be allowed to ask questions and should, with the employer's consent, participate as fully as possible in the hearing. The companion should also be permitted reasonable time to confer privately with the worker, either in the hearing room or outside." (para. 64)

    Postponement of hearing

    Section 10(4) of the 1999 Act allows for a hearing attracting the right to be accompanied to be postponed should the worker's chosen companion not be available at the time proposed for the hearing by the employer. Provided the worker proposes an alternative time that satisfies the terms of s.10(5), the employer must postpone the hearing. If the employer does not postpone, and proceeds without the worker being allowed their chosen companion, it will be treated as a refusal possibly leading to a tribunal claim for compensation (see p.10 below).

    Under s.10(5), an alternative time proposed by the worker must be reasonable and fall before the end of a period of five working days beginning with the first working day after the date proposed by the employer. For example, if a manager speaking to a worker on Monday proposes a meeting at 2pm on Friday, the worker could postpone the meeting (should the chosen representative not be available) to a date not later than the following Friday. For these purposes, "a working day" is a day other than a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday (s.13(6)).

    Employers might be wary of workers seeking to delay proceedings on the pretext that their chosen union official is not available. This might well lead to employers seeking written confirmation of the union official's non-availability before agreeing to postpone the original date. Further, the revised Code advises: "In proposing an alternative date the worker should have regard to the availability of the relevant manager ... it would not normally be reasonable to ask for a new date for the hearing where it was known the manager was going to be absent on business or on leave unless it was possible for someone else to act for the manager at the hearing." (para. 62)

    Venue and arrangements

    There are otherwise no statutory requirements in relation to the timing, venue and arrangements for disciplinary or grievance hearings. Once again, the revised Code seeks to fill the void. It suggests that it is "good practice" for an employer to agree a mutually convenient date for the hearing with the worker and his or her companion. This, it says, should ensure that hearings do not have to be delayed or postponed at short notice (see again para. 62).

    Further, the employer should ensure that a suitable venue is available and that, where necessary, arrangements are made to cater for any disability the worker or companion may have. Where English is not the worker's first language, the Code observes that there may also be a need for translation facilities (see generally para. 63).

    Time off for companions

    Should a worker requested or invited to attend a relevant hearing not be a member of a trade union, or choose not to be accompanied by a trade union official, he/she might choose instead to be accompanied by a fellow worker. Section 10(6) of the 1999 Act obliges an employer to allow a fellow worker chosen as a companion time off with full pay during working hours to attend such a hearing with the worker. Such rights are determined in accordance with ss.168(3) and (4), 169 and 171 to 173 of the TULR(C)A. This gives the same rights to time off as apply to bona fide union officials and allow a reasonable amount of paid time off work to carry out the relevant duties. A right of complaint to an employment tribunal is available (to be made within three months of the date of the failure) if the employer fails to allow adequate time off, or fails to pay (wholly or in part) for time off that is permitted.

    This will include time off to prepare for the hearing in discussion with the worker concerned. Section 168(3) of the TULR(C)A provides that:

    the amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS.

    Paragraph 61 of the revised ACAS Code of Practice on Disciplinary and Grievance Procedures clearly states:

    A worker who has been requested to accompany a colleague employed by the same employer and has agreed to do so is entitled to take a reasonable amount of paid time off to fulfil this responsibility. The time off should not only cover the hearing but should allow a reasonable amount of time off for the accompanying person to familiarise themselves with the case and confer with the worker before and after the hearing.

    REMEDIES FOR NON-COMPLIANCE

    The accompaniment provisions introduce a new ground of complaint and remedy against recalcitrant employers, and extend existing protection against victimisation in the form of detrimental treatment and dismissal to both workers seeking to exercise the right to be accompanied and their companions.

    Failure to allow accompaniment

    Under s.11 of the 1999 Act a worker can present a complaint to an employment tribunal that his or her employer has "failed or threatened to fail" to comply with and allow him or her the right of accompaniment under s.10(2) or to postpone proceedings under s.10(4). Just the threat of a refusal to allow these statutory rights could result in a successful tribunal claim even if the disciplinary matter or grievance is later withdrawn without a hearing.

    A complaint must be made to the tribunal before the end of a period of three months beginning with the date of the failure or threatened failure. This can be extended, at the discretion of the tribunal, if it was not reasonably practicable for the application to be presented in time.

    If the tribunal finds a complaint well-founded it can make an award of compensation to the worker not exceeding two week's pay (s.11(3)), subject to the statutory maximum on a week's pay laid down in s.227(1) of the ERA (currently £230 - s.11(4)). However, no award is to be made under s.11(3) of the 1999 Act in respect of a claim made in the course of unfair dismissal proceedings if the tribunal makes a supplementary award of compensation under s.127A (2) of the ERA (that is, an award made on the basis that the employer has prevented an employee from using an existing internal procedure for appealing against dismissal).

    Right not to be subjected to detriment

    By virtue of s.12(1) of the 1999 Act, a worker has the further right not to be subjected to a detriment by any act, or any deliberate failure to act, by his or her employer on the ground that he or she:

  • has exercised, or sought to exercise, a right to be accompanied or postpone a hearing; or

  • has accompanied, or sought to accompany, another worker (whether of the same employer or not).

    The last point is crucial: protection from victimisation is available to those who accompany, or seek to accompany, another whether or not it concerns a fellow worker of the same employer or of another. Companions are consequently protected against victimisation and dismissal by their own employer in all circumstances. Time off with pay is not, however, available to those who represent another employer's worker (see p.9 above).

    Individuals who believe themselves to have been subjected to such a detriment, apparently up to and including dismissal, must apply to an employment tribunal within three months of the alleged act by the employer. This period can be extended at the discretion of the tribunal. The procedural and time-limits provisions of s.48 of the ERA are specifically applied for these purposes (s.12(2) of the 1999 Act), and this must implicitly include the related remedies provided for in s.49 of the ERA. We have most recently considered broadly analogous detrimental treatment provisions in Statutory trade union recognition (2): basic procedure.

    Automatically unfair dismissal

    Victimisation resulting in dismissal is dealt with by s.12(3) of the 1999 Act. If the reason or principal reason for the dismissal is that the worker exercised, or sought to exercise, the right to be accompanied or postpone a hearing or accompany another (whether or not of the same employer), the dismissal will be regarded as automatically unfair for the purposes of the unfair dismissal provisions of Part X of the ERA. The normal 12-month qualifying period or upper-age limit restriction for unfair dismissal claims will not apply to such applications courtesy of s.12(4) of the 1999 Act.

    Section 12(6) of the Act extends the scope of Chapter II of Part X of the 1996 Act so that the unfair dismissal remedies ordinarily available only to employees are also made available to those falling within the wider definition of "worker" claiming under s.12(3).

    Interim relief

    Section 12(5) of the 1999 Act allows workers dismissed for any of the reasons referred to in the preceding section to rely on the interim relief provisions contained in ss.128-132 of the ERA. Interim relief originally applied only to trade union-related dismissals, but has more recently been extended to cover certain health and safety dismissals, protected disclosure dismissals and dismissals related to statutory trade union recognition (on the latter see Statutory trade union recognition (2): basic procedure). If interim relief is granted, employment is continued pending the outcome of the full tribunal hearing. There are two essential hurdles to clear before it can apply:

  • While the complainant can apply for interim relief before dismissal (as defined in s.95 of the ERA), he/she cannot apply for it later than seven days after the effective date of termination.

  • The tribunal must be convinced that the substantive claim is likely to succeed at a subsequent full hearing.

    If the employer is unwilling to reinstate the applicant, the tribunal can make an order for the continuation of the applicant's contract (including full pay and benefits) until the full hearing when reinstatement can be considered as a final remedy.

    Contracting out and conciliation

    The provisions of s.203 of the ERA apply to prohibit contracting out of the new rights considered in this feature, other than in the context of ACAS conciliated settlements and compromise agreements. ACAS's duty to conciliate, contained in s.18 of the Employment Tribunals Act 1996, also applies (see s.14 of the 1999 Act).

    References

    1 The Employment Relations Act 1999 (Commencement No.7 and Transitional Provisions ) Order 2000 (SI No.2242). A worker has the right to be accompanied to a disciplinary or grievance hearing held on or after 4 September, unless he or she was required or invited to attend the hearing before that date.

    2 The Employment Code of Practice (Disciplinary and Grievance Procedures) Order 2000 (SI No.2247). Copies of the revised Code can be obtained from ACAS Reader Ltd, PO Box 16, Earl Shilton, Leicester LE98ZZ, tel: 01455 8252225, and from the stationery office, price £2.95.

    3 Fairness at work White Paper, para. 4.29.

    4 [1998] IRLR 358.

    5 [1995] IRLR 516.

    6 See, for example, government spokesman Lord Simon of Highbury speaking during the House of Lords Committee Stage of the Bill, Hansard (HL), 16.6.99, col. 336.

    7 Fairness at Work, para. 3.18 and Explanatory Notes to the Act, para. 232).

    8 [1995] IRLR 493.

    9 [1986] IRLR 27.

    10 [1974] ICR 248.

    11 [1999] IRLR 367.

    12 [2000] IRLR 43.

    13 [2000] IRLR 391

    14 [1980] ICR 649.

    15 [1983] IRLR 14.

    16 Lord Simon speaking during Lords Committee stage of the Bill, Hansard (HL), 16.6.99, col.337.

    17 ibid, col. 336.

    18 ibid, col. 337.

    19 Standing Committee E (SC(E)), Official Report, 25.2.99, col. 159.

    20 [1988] IRLR 215.

    21 Lords Committee Stage, Hansard(HL), 16.6.99, col.337.

    22 SC(E), Official Report, 25.2.99, col. 155.

    23 ibid, col. 164.

    Right to be accompanied - in outline

  • The new right applies where a "worker" is required or invited by his or her employer to attend a disciplinary or grievance hearing, and reasonably requests to be accompanied at the hearing.

  • A disciplinary hearing is any hearing that could result in: the administration of a formal warning to a worker by his employer; the taking of some other action in respect of a worker by his employer; or the confirmation of a warning issued or some other action taken.

  • A grievance hearing is a hearing that concerns "the performance of a duty" by the employer in relation to a worker. It is intended that this should be limited to grievances about legal duties (statutory or common law) owed by the employer.

  • The employer "must permit" the worker to be accompanied at such hearings by a single companion who: is chosen by the worker and falls within a category specified by the statute (see below); is to be permitted to address the hearing (but not to answer questions on behalf of the worker); and is to be permitted to confer with the worker during the hearing.

  • A companion can be either: a union official employed by the union; a lay union official (whether or not employed by the same employer as the worker) who is "reasonably certified in writing" by the union as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings; or another of the employer's workers.

  • A broad class of "workers" enjoys the right to be accompanied, and protection against victimisation and dismissal covers both the worker subject to a hearing and his or her companion (whether or not employed by the same employer).

  • Companions employed by the same employer have the right to paid time off to accompany a colleague.

  • A worker denied the right to be accompanied can complain to an employment tribunal and may receive up to two weeks' pay in compensation. This also applies where the employer merely threatens to deny the right.