Related posts:No related photos. Previous Article Next Article RobertStanton draws some useful lessons from the first tribunal decision on thestatutory right to be accompanied at disciplinary and grievance hearings Good disciplinary and grievance procedures have always provided for workersto be accompanied at hearings. In 2000, workers were given a statutory right tobe accompanied at certain disciplinary and grievance hearings by a colleague ortrade union official. In the recent case of Ferenc-Batchelor v LondonUnderground Limited; Harding v London Underground Limited, the EmploymentAppeal 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 unionofficial where: – they are required or invited by their employer to attend a disciplinary orgrievance 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 performanceof 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 forthe purposes of the right to be accompanied. The companion attends the meeting to support the worker, rather than act astheir representative. Accordingly, the companion may: – confer with the worker – address the hearing, but is not entitled to ask or answer questions onbehalf 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 bere-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 ofthe original date. The maximum compensation payable where the right has been denied is twoweeks’ pay (capped at £260 per week). However, denial of the right will berelevant in determining whether an employee has been unfairly dismissed. The right to be accompanied has recently been extended to apply to meetingsand appeals to discuss flexible working applications. In these situations, theright differs in a few important respects from the right to be accompanied atdisciplinary 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 (ratherthan 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 whichrequire no more than a few words of warning not to repeat the conduct or wordscomplained of, without the need for a formal hearing. To have to arrangerepresentation in every such case would be likely to cause disruption to thebusiness – each time a hearing takes place, two workers are taken away fromtheir normal duties. However, it is equally important to ensure workers are afforded sufficientprotection and support in situations where matters take on a degree offormality and the outcome might affect an employee’s record, and theirprospects. The London Underground cases The employees claimed that their employer, London Underground (LU), haddenied them the right to be accompanied in respect of a meeting which couldresult in what was described by LU as “an informal oral warning”. Thecase therefore focused on the meaning of a ‘disciplinary hearing’ in thecontext of the right. A disciplinary hearing is defined for the purposes of the right as a hearingwhere, among other things, an employer could administer a formal warning to aworker. The Acas Code of Practice on Disciplinary and Grievance Procedures(which, though not binding, can be taken into account by tribunals indetermining whether a dismissal is unfair) says that whether a worker has thestatutory right to be accompanied at a disciplinary hearing will depend on thenature of the hearing. If matters remain informal, then the right does notarise. The EAT decision provides some useful guidance on where informality ends andformality begins. Facts of the case The case was a joined appeal involving separate cases brought by LUemployees Ms Ferenc-Batchelor and Mr Harding. Ferenc-Batchelor had been called to a disciplinary hearing, after havingdriven a train through a red signal. She asked to be accompanied by a tradeunion official but was told she was “not allowed trade unionrepresentation at this level” because the hearing could only result in aninformal oral warning. However, following an adjournment of the hearing toobtain further information, management decided that an informal oral warningwas inappropriate in the circumstances, and went on to the formal disciplinaryprocedure under which she was entitled to be accompanied. Harding was invited to a meeting to discuss his poor attendance under LU’sattendance at work procedure. Harding walked out of the meeting when hisrequest 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 theright to be accompanied. It considered a number of situations which would not give rise to the rightto be accompanied, namely: – the giving of an instruction to an employee – a fact-finding investigation – training, coaching and counselling, provided they did not contain anyelement 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 thatit did not attract the right to be accompanied if it was in substance a formalwarning. Accordingly, the EAT said a tribunal should look at the substance,purpose and effect of a particular warning rather than the label given to itbefore determining whether it amounted to a formal warning triggering the rightto be accompanied. The EAT’s view was that the purpose of a warning that was truly informal wasto help the employee to improve, and by its nature it would fade and disappearduring the passage of time, and play no part in any action that might follow orin the imposition of later sanctions. Such warnings fell outside the scope ofthe right to be accompanied. The EAT then set out the characteristics of a formal warning, the keyelement of which is that it will become part of the employee’s disciplinaryrecord. Other elements of formality would include when the warning contained a timelimit after which it expired; when taken it was taken into account andconsidered in the event of a similar offence; and when it would lead to moreformal charges in the event of a repetition. In the case in question, the EAT concluded that warnings given by LU, thoughdescribed 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 intoaccount in the event of a similar offence. It is worth noting that LU questioned the point of giving an oral warning ifit was not recorded for management purposes one way or another. The EAT drew adistinction between warnings placed on an employee’s disciplinary record andincidents 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-dayincidents by using informal warnings. However, any warnings that are put on anemployee’s disciplinary file and are taken into account in any subsequentdisciplinary action will almost certainly constitute formal warnings, howeverthey might be described by the employer. Disciplinary policies should thereforebe reviewed in light of this – problems could arise if employees’ disciplinaryrecords include warnings given when the right to be accompanied was denied. Robert Stanton is a solicitor in the employment group at City law firmMacfarlanes Right applies in– Formal disciplinary hearings– Grievance hearings– Flexible working hearingsRight doesn’t apply in– Genuinely informal disciplinarymatters– Investigatory meetings– Redundancy dismissal/consultation meetings Morals of supportOn 1 Sep 2003 in Personnel Today Comments are closed.