New right for workers to be accompanied at disciplinary and grievance hearings

The Employment Relations Act 1999 gives UK workers the statutory right to be accompanied by a trade union official or fellow worker at workplace disciplinary and grievance hearings. This feature outlines the new provisions, which came into force in September 2000, and highlights their potential impact.

From 4 September 2000, workers in the UK have the right to be accompanied by a trade union official or fellow worker workplace disciplinary or grievance hearings (UK0008184N). The new statutory provisions, contained in sections 10-15 of the Employment Relations Act 1999 (UK9912145F), were brought into force on that date by statutory instrument. At the same time, a code of practice on disciplinary and grievance procedures drawn up by the independent Advisory, Conciliation and Arbitration Service (ACAS) also came into effect.

Key points of the new legislation

The legislation provides that workers invited by their employer to attend a disciplinary or grievance hearing may opt to be accompanied by a single individual of their choice who is either:

  • a full-time union official;
  • a lay union official certified by the union as having experience or having received training in performing this role; or
  • a fellow worker currently employed by the same employer.

The new right applies where the requirement or invitation to attend a disciplinary or grievance hearing is made on or after 4 September 2000. A disciplinary hearing is defined as a hearing which could result in a formal warning to a worker by the employer or some other action against them, or the confirmation of a warning or other action (ie an appeal hearing). A grievance hearing is defined as concerning the performance of a (contractual or statutory) duty by an employer in relation to a worker.

The accompanying person may address the hearing and confer with the worker during the hearing but may not answer questions on the worker's behalf. If a worker's chosen companion is not available at the time proposed for the hearing, employers must agree to an alternative time for the hearing, no more than five days after the original date. Where the chosen companion is employed by the same employer, the latter must allow them to take paid time off during working hours to attend the hearing.

If an employer fails to comply with the new statutory provisions, the workers concerned may complain to an employment tribunal which may award compensation of up to two weeks' pay if it upholds the complaint. Workers also have the right not to be subject to any detriment as an individual on the grounds of having sought to exercise the right to accompaniment.

There is no legal obligation on employers to introduce disciplinary or grievance procedures where they do not already exist (although section 3 of the Employment Rights Act 1996 does oblige employers with 20 or more employees to inform them of any disciplinary rules applicable, and specify a person to whom they can apply for redress of any grievance and the manner in which any such application should be made).

Similarly, there is no duty on trade unions or other employees to accompany the worker concerned if they do not wish to do so. Guidance on the new legislation produced by the Trades Union Congress (TUC) states that: "A union will generally judge whether the companion should be a local voluntary union rep (which is more likely) or a full-time officer of the union. Some unions have rules saying that they cannot provide representation for members until they have been in the union for a certain amount of time. This requirement is sometimes considered necessary to prevent people joining a union suddenly when they are in trouble, getting free advice and assistance, then leaving, at considerable expense to the union. Some unions will make a judgment about whether a grievance is well-founded and likely to succeed before agreeing to represent someone."

Code of practice

The code of practice, approved by the tripartite Council of ACAS following a public consultation exercise, updates a long-standing ACAS code on disciplinary practice and procedures in employment and provides additional guidance on good practice in dealing with employee grievances and the operation of the new statutory right. The code is not legally binding in itself but its provisions will be taken into account by employment tribunals in relevant cases. As well as setting out the requirements of the new legislation, the code includes guidance on issues such as what may or may not constitute a grievance for the purposes of the right to be accompanied. Among other matters, the code provides that:

  • workers are free to choose an official from any trade union to accompany them, regardless of whether the union is recognised by the employer or not. However, where a union is recognised in a workplace it is good practice for an official from that union to accompany the worker at the hearing;
  • time off work for the chosen companion, where applicable, should not only cover the hearing but should also be sufficient to enable them to familiarise themselves with the case and confer with the worker before and after the hearing; and
  • the companion should be allowed to ask questions and should, with the agreement of the employer, be allowed to 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.

Views of the social partners

The TUC has welcomed the new right to be accompanied. TUC general secretary John Monks said in a statement: "This is a welcome move for all those people who do not have the benefit of union recognition at work ... They can now rest assured that if in the future they hit a problem, they will be able to rely on the support of a union rep or colleague to help see them through."

The Confederation of British Industry originally lobbied the government to confine the right to be accompanied to disciplinary matters, not grievances, arguing that while disciplinary procedures are well defined in most UK companies, the scope for employee-initiated grievances is extensive and the right to be accompanied could be open to abuse by those with ulterior motives, eg in pursuit of bargaining objectives. The restriction of the right to be accompanied to grievances concerning employers' statutory or contractual duties was intended by the government to meet employer concerns

Commentary

According to the 1998 Workplace Employee Relations Survey (UK9811159F), 92% of workplaces with 25 or more employees have disciplinary procedures in place and 91% have formal grievance procedures. The survey also showed that 4% of workplaces do not allow employees to be accompanied by a third party in disciplinary cases, with a further 2% only allowing the option of being accompanied by a supervisor or line manager; in almost all cases, these were workplaces without any union presence. Workplaces with recognised unions were much more likely than others to specify that union representatives and full-time officials could accompany employees. A "near identical pattern" is reported in respect of accompaniment in grievance hearings.

Until now, grievance and disciplinary procedures have not been subject to statutory regulation (though the advent of unfair dismissal legislation in 1971 encouraged the subsequent spread and formalisation of disciplinary procedures). The previous ACAS code of practice on disciplinary procedures provided that workers should have the right to be accompanied by a trade union representative or fellow employee of their choice at disciplinary interviews, but this had no direct legal force. The government sees the new statutory right as "[setting] what is already widespread good practice as a basic minimum standard".

As well as improving workers' individual employment rights, the legislation is also potentially significant in collective industrial relations terms. Union officials now have the right to attend disciplinary and grievance hearings where invited to do so by workers (not necessarily members) even where there is no union recognition. The new statutory provisions fall short of providing a fully-fledged "right to representation", as they limit the extent to which the accompanying person can intervene in the proceedings. Nevertheless, unions hope – and some employers fear – that in workplaces where unions are not recognised, the operation of the new right may boost unions' organising efforts by enabling them to gain access to the workplace and demonstrate the value of their role in supporting workers with problems. (Mark Hall, IRRU)

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