New statutory rights entitle staff to be accompanied by a trade union official or fellow worker at employment tribunals, with penalties for uncooperative employers
Further individual rights will soon be implemented under the Employment Relations Act 1999, which gives employees a statutory right to representation.
Previous case law has elevated the existing Acas code of practice on Disciplinary Practice and Procedures in Employment to the status where tribunals must consider its provisions when making a decision. Lock v Cardiff Railway Co, 1998, IRLR 358, is the most significant case here.
However, one element of the code now has statutory basis. Workers now have the right, via section 10(2) of the Act, to be accompanied at disciplinary or grievance hearings by a fellow worker or a trade union official. This right, together with a new Acas code of practice specifically on this point, is due to come into force on 4 September 2000.
It applies to all workers, not just employees (so will include home workers and agency workers) where they have been invited or required to attend a disciplinary or grievance hearing, and they reasonably request to be accompanied.
A relevant disciplinary hearing is one which could result in a formal warning being issued to the worker, the taking of some other action in respect of the worker, or the confirmation of a warning or some other action taken by the employer. In other words, any level of a formal or informal disciplinary procedure.
A relevant grievance hearing is one which concerns the performance of a “duty by an employer in relation to a worker”, that is, a legal duty arising from statute or common law such as contractual commitments.
The companion is chosen by the worker and can address the hearing and confer with the worker during the hearing, but cannot answer questions on the worker’s behalf.
A companion is defined as:
• A full-time trade union official within the meaning of sections 1 and 119 of Trade Union and Labour Relations (Consolidation) Act 1992
• A trade union official whom the union has certified as having experience of acting as a companion, or as having received training in this role
• Another of the employer’s workers.
Any worker chosen to be a companion is entitled to paid time off to carry out this task. If the chosen companion will not be available on the date the employer has notified for the hearing, and the worker proposes a reasonable alternative time within five days from the day after the original date, the employer must agree.
Employers who deny or threaten to deny the worker the right to be accompanied or to postpone the hearing date, risk a complaint to the employment tribunal. If proven, the employer could be forced to pay the worker up to two weeks pay as compensation (up to a maximum of £230 gross per week).
Employers must not subject workers to any detriment by any act, or deliberate failure to act, on the basis that the worker exercised or sought to exercise a right to be accompanied or postpone the hearing date, or accompanied or sought to accompany another worker following a request.
If a dismissal occurs through the exercise of this right, it will be automatically unfair.
Sue Nickson is a partner and head of the national employment law unit at Hammond Suddards