Robert
Stanton draws some useful lessons from the first tribunal decision on the
statutory right to be accompanied at disciplinary and grievance hearings
Good disciplinary and grievance procedures have always provided for workers
to be accompanied at hearings. In 2000, workers were given a statutory right to
be accompanied at certain disciplinary and grievance hearings by a colleague or
trade union official. In the recent case of Ferenc-Batchelor v London
Underground Limited; Harding v London Underground Limited, the Employment
Appeal Tribunal considered this right for the first time.
The right to be accompanied
A worker is entitled to be accompanied by a colleague or trade union
official where:
– they are required or invited by their employer to attend a disciplinary or
grievance hearing
– they reasonably request to be accompanied.
A disciplinary hearing is defined as any hearing that could result in:
– the administration of a formal warning to a worker by their employer
– the taking of some other action in respect of a worker by their employer
– the confirmation of a warning issued or some other action taken.
A grievance hearing is defined as a hearing which concerns the performance
of a duty by an employer in relation to a worker.
Meetings held under the new statutory disciplinary and grievance procedures
(currently due to come into force in October 2004) will amount to a hearing for
the purposes of the right to be accompanied.
The companion attends the meeting to support the worker, rather than act as
their representative. Accordingly, the companion may:
– confer with the worker
– address the hearing, but is not entitled to ask or answer questions on
behalf of the worker.
The companion may be:
– a trade union official
– another of the employer’s workers.
An employer may set the time of the hearing. However, it must be
re-scheduled for another time convenient for the worker if:
– the chosen companion is not be available at the proposed time
– the worker proposes a reasonable alternative that is within five days of
the original date.
The maximum compensation payable where the right has been denied is two
weeks’ pay (capped at £260 per week). However, denial of the right will be
relevant in determining whether an employee has been unfairly dismissed.
The right to be accompanied has recently been extended to apply to meetings
and appeals to discuss flexible working applications. In these situations, the
right differs in a few important respects from the right to be accompanied at
disciplinary and grievance hearings:
– the companion may only be a fellow worker and not a trade union official
– any alternative time proposed by the worker must be within seven (rather
than five) days of the original day proposed by the employer.
Why is it important to understand the scope of the right?
An employer must be able to deal with minor incidents on the spot which
require no more than a few words of warning not to repeat the conduct or words
complained of, without the need for a formal hearing. To have to arrange
representation in every such case would be likely to cause disruption to the
business – each time a hearing takes place, two workers are taken away from
their normal duties.
However, it is equally important to ensure workers are afforded sufficient
protection and support in situations where matters take on a degree of
formality and the outcome might affect an employee’s record, and their
prospects.
The London Underground cases
The employees claimed that their employer, London Underground (LU), had
denied them the right to be accompanied in respect of a meeting which could
result in what was described by LU as "an informal oral warning". The
case therefore focused on the meaning of a ‘disciplinary hearing’ in the
context of the right.
A disciplinary hearing is defined for the purposes of the right as a hearing
where, among other things, an employer could administer a formal warning to a
worker. The Acas Code of Practice on Disciplinary and Grievance Procedures
(which, though not binding, can be taken into account by tribunals in
determining whether a dismissal is unfair) says that whether a worker has the
statutory right to be accompanied at a disciplinary hearing will depend on the
nature of the hearing. If matters remain informal, then the right does not
arise.
The EAT decision provides some useful guidance on where informality ends and
formality begins.
Facts of the case
The case was a joined appeal involving separate cases brought by LU
employees Ms Ferenc-Batchelor and Mr Harding.
Ferenc-Batchelor had been called to a disciplinary hearing, after having
driven a train through a red signal. She asked to be accompanied by a trade
union official but was told she was "not allowed trade union
representation at this level" because the hearing could only result in an
informal oral warning. However, following an adjournment of the hearing to
obtain further information, management decided that an informal oral warning
was inappropriate in the circumstances, and went on to the formal disciplinary
procedure under which she was entitled to be accompanied.
Harding was invited to a meeting to discuss his poor attendance under LU’s
attendance at work procedure. Harding walked out of the meeting when his
request to be accompanied was refused. The hearing continued in his absence,
and resulted in him receiving an ‘informal oral warning’.
The EAT decision
The EAT made a number of important findings in relation to the extent of the
right to be accompanied.
It considered a number of situations which would not give rise to the right
to be accompanied, namely:
– the giving of an instruction to an employee
– a fact-finding investigation
– training, coaching and counselling, provided they did not contain any
element of penalty or punishment for what had gone on
– meetings which would potentially result in a purely informal warning.
However, just because a warning was described as informal, did not mean that
it did not attract the right to be accompanied if it was in substance a formal
warning. Accordingly, the EAT said a tribunal should look at the substance,
purpose and effect of a particular warning rather than the label given to it
before determining whether it amounted to a formal warning triggering the right
to be accompanied.
The EAT’s view was that the purpose of a warning that was truly informal was
to help the employee to improve, and by its nature it would fade and disappear
during the passage of time, and play no part in any action that might follow or
in the imposition of later sanctions. Such warnings fell outside the scope of
the right to be accompanied.
The EAT then set out the characteristics of a formal warning, the key
element of which is that it will become part of the employee’s disciplinary
record.
Other elements of formality would include when the warning contained a time
limit after which it expired; when taken it was taken into account and
considered in the event of a similar offence; and when it would lead to more
formal charges in the event of a repetition.
In the case in question, the EAT concluded that warnings given by LU, though
described as "informal oral warnings", were in fact formal warnings,
attracting the right to be accompanied. Its reasoning was that the warnings:
– would be confirmed in writing
– would have a formal timescale for continuation attached to them
– would be part of the disciplinary record of the employee and taken into
account in the event of a similar offence.
It is worth noting that LU questioned the point of giving an oral warning if
it was not recorded for management purposes one way or another. The EAT drew a
distinction between warnings placed on an employee’s disciplinary record and
incidents simply noted by management to record for their own purposes what had occurred.
The former pointed to a degree of formality that the latter did not.
Impact of the case
This case does not restrict the right of employers to deal with day-to-day
incidents by using informal warnings. However, any warnings that are put on an
employee’s disciplinary file and are taken into account in any subsequent
disciplinary action will almost certainly constitute formal warnings, however
they might be described by the employer. Disciplinary policies should therefore
be reviewed in light of this – problems could arise if employees’ disciplinary
records include warnings given when the right to be accompanied was denied.
Robert Stanton is a solicitor in the employment group at City law firm
Macfarlanes
Right applies in
– Formal disciplinary hearings
– Grievance hearings
– Flexible working hearings
Right doesn’t apply in
– Genuinely informal disciplinary
matters
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