Disciplinary Hearings: Who Should You Allow as an Employee's Companion?

Acas have recently amended their non-statutory guidance relating to disciplinary hearings. While workers do have the right to be accompanied by a trade union representative or colleague, the guidance clarifies that employers may allow an employee to be accompanied by someone who does not fall into either of these categories.

Employers are permitted to exercise discretion when deciding who to allow as a companion, where the individual concerned is not a trade union representative or colleague. However, recent case law should act as a warning in this respect. A judgment was recently made against an employer who failed to allow an employee to be accompanied by the companion of his choice, even though this individual was neither a trade union official nor a work colleague. It was held that the companion would have fulfilled “the same role as a trade union representative” and therefore, by not allowing the companion to be present at the hearing, the actions of the employer were sufficient to “damage the relationship of mutual trust and confidence”.

As the case above demonstrates, tribunals will not just follow the letter of the law. They will also take into account whether an employer has acted ‘reasonably’ and it is therefore essential to follow the Acas code at every stage of the disciplinary process due to it being a key consideration. Unreasonably failing to follow the code may increase the employee’s compensation by up to 25%.

The Acas code of practice sets out the steps employers must take, including: investigating the issue, informing the employee of the issues in writing, holding a hearing, informing the employee of the decision and also the right of appeal. Your procedures should be accessible and transparent, with each stage documented in writing.

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