We have invited an employee to a disciplinary hearing. The employee has informed us that they wish to be accompanied at the hearing by a colleague. However, the colleague in question is also involved in the disciplinary matter and we feel that them acting as a companion would prejudice the disciplinary process. Can we ask the employee to select another companion?
The right of an employee to bring a companion to a disciplinary hearing is enshrined in both legislation (the Employment Relations Act 1999) and the ACAS Code of Practice on Disciplinary and Grievance Procedures. The basic rule is that an employee can be accompanied by a trade union representative or a colleague.
The legislation states that the employee must ‘reasonably request’ to be accompanied, and until relatively recently it was considered that a request would not be reasonable if the choice of companion was unreasonable.
However, in the 2013 case of Toal and another v GB Oils Ltd, the Employment Appeal Tribunal disagreed with that approach and stated that the employee’s right to choose their companion is absolute. In short, you cannot refuse an employee’s choice of companion provided they fit into the categories mentioned above. The ACAS Code has since been updated in light of this decision.
In addition, if the employee’s companion is not available at the time set for the disciplinary hearing, the employee has the right to request that the hearing be postponed for up to five days to allow their companion to attend. If the new time suggested is reasonable the employer must agree to the postponement.
Refusing an employee’s choice of companion would be risky, as it may expose you to claims such as unfair dismissal. In addition, a failure to follow the ACAS Code could result in up to a 25% increase in the compensation payable in a successful claim against you.
Given your concerns in relation to the companion chosen, you may wish to consider outlining the role of the companion at the outset of the hearing, namely that the companion can participate in the hearing but cannot answer questions on the employee’s behalf or prevent anyone else from contributing.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.