Statutory requirement for employees | Davis Blank Furniss Solicitors

It can be quite daunting walking into a disciplinary or a grievance meeting. They can be stressful, even when you are used to having formal meetings routinely as part of your work.  However, it is far more daunting if you are raising a grievance of sexual harassment against a colleague or you are called into head office for a disciplinary meeting when you may be a landscape gardener or a delivery driver with very little experience of formal meetings.   Having a companion to help and support an employee in those circumstances is nothing short of essential.

It is for this reason that the Government introduced a statutory requirement for employees to be accompanied at disciplinary, capability and grievance meetings.

When this was first introduced employees had a choice of a companion who was a work colleague, union rep or an official.  However, it was limited by the fact that it had to be a “reasonable request” and therefore it gave leeway for employers to argue that certain individuals selected by employees were unreasonable.  This notion was put to bed by the case of Toal and Another –v- GB Oils Limited in 2013 where it was held that the employee’s choice of companion was absolute provided they were a colleague or trade union representative.

Employers have since tended to stick to this as a steadfast rule which has caused additional problems in specific circumstances.

Our advice is always that the right to be accompanied by a colleague or a union representative is the minimum requirement and employers should seriously consider every request made for an alternative companion before rejecting the request.

The most obvious circumstance is if an individual has a disability and being accompanied by a different companion would assist them to overcome the disability.  So, for example, an individual who is suffering from severe depression may feel more comfortable with having a friend accompany them or a family member.  It would also be a reasonable adjustment under discrimination legislation that should be made in such circumstances.

Not allowing a family member or friend attend may actually delay an important meeting that can move a matter on, provide clarification for both parties or reduce additional stress caused by a delay.

The same situation would apply, for example, if an employee has difficulty understanding English.  They may want a colleague or a friend who can interpret to be their companion, unless the employer is providing a translator.

Another example is when there is a disciplinary meeting or a redundancy consultation that needs to take place with an employee on maternity leave.  It may be more conducive to allow a family member or friend to attend as in most circumstances these meetings tend to be at an employee’s home.

Circumstances, where an employer can refuse to accept a specific companion, would be where the companion is unavailable at the time the meeting is scheduled and also not be available for more than five working days afterwards.  In this type of instance,  an employer may request that the employee choose someone else instead.

We always advise employers to ensure that the rights to be accompanied at formal meetings such as disciplinary, capability and grievances are specifically referred to in their internal policies and procedures.

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