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Employment Relations Act 1999

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Sections 10-15 : Right to be accompanied in disciplinary and grievance hearings

191.The ACAS Code of Practice No 1 on “Disciplinary Practice and Procedures in Employment” states that disciplinary procedures should “give individuals the right to be accompanied by a trade union representative or by a fellow employee of their choice” at disciplinary interviews. The Code has no legal force but it must be taken into account by Employment Tribunals where it appears to be relevant. In practice, any failure by an employer to allow a worker to be accompanied can count against an employer in tribunal hearings and can result in a ruling that the dismissal was unfair. There is no statutory obligation to put in place disciplinary or grievance procedures although section 3 of the 1996 Act does oblige employers with 20 or more employees to inform their employees of disciplinary rules, the name of a person to whom they can apply for redress of any grievance and the manner in which any such application should be made.

192.Section 10 creates a statutory right for a worker to be accompanied by a fellow worker or trade union official of his choice during grievance and disciplinary procedures. Section 11 provides a remedy for individuals following a failure to comply with the right to accompaniment. Section 12 provides a right not to be subject to any detriment as an individual on the grounds of having sought to exercise the right to accompaniment. Section 13 provides definitions for some of the terms used in sections 10 to 13. Section 14 places restrictions on contracting out of the section 10-13 provisions and provides for conciliated settlement of tribunal claims. Section 15 excludes national security employees from the rights conferred by sections 10-13.

193.The Act does not place a duty on trade union officials or fellow employees to perform the role as the accompanying individual. Nor does it place any additional requirements on employers to establish disciplinary or grievance procedures where none currently exists.

194.Section 10(1) provides that the right applies when a worker is invited by his employer to attend a disciplinary or grievance hearing and makes a reasonable request to be accompanied thereto. Section 10(2) states that the right extends to accompaniment by a single individual of the worker’s choice who shall have permission to address the hearing and to confer with the worker during the hearing but shall not be permitted to answer questions on behalf of the worker. Section 10(3) describes the individuals who may act as the accompanying person:

  • a trade union official employed by the union (full time officials will fall into this category);

  • a trade union official not employed by the union (eg a lay official) who has been reasonably certified in writing by his or her union as having had experience of acting as an accompanying person or as having received trained in performing this role; or

  • a fellow worker currently employed by the same employer.

195.Sections 10(4) and (5) provide that a worker may propose an alternative time for the hearing if his chosen companion is unavailable to accompany him at the time of the hearing proposed by the employer. The employer is bound to accept the alternative time provided that it is reasonable and is no more than five working days after the date originally proposed by the employer. Section 10(6) provides that an employer must permit a worker time off to accompany a fellow worker and section 10(7) has the effect that such time off should be paid. (This entitlement to paid absence is defined by reference to the existing sections of the 1992 Act which specify an employer’s obligations to provide paid time off to the officials of recognised trade unions when carrying out their trade union duties.)

196.Section 11 provides for a right for individuals to apply to an employment tribunal to remedy an employer’s failure, or threat to fail, to comply with the right to accompaniment; subsection (2) provides the time limit for bringing such a complaint to a tribunal; and subsection (3) provides a remedy for a successful complaint under the section of compensation up to a maximum of two weeks’ pay. Subsection (4) determines the basis for calculation of a “week’s pay” in these circumstances. Under subsection (5), the calculation of a week’s pay is subject to an upper limit provided for by section 227(1) of the 1996 Act. Under subsection (6), where the claim is part of a claim for unfair dismissal, no compensation will be available for a claim in respect of the right to accompaniment if it is part of a claim for unfair dismissal and the tribunal makes a supplementary award of compensation for the dismissal under section 127A(2) of the 1996 Act because the employer provided a procedure for appealing against dismissal but prevented the complainant from using it.

197.Section 12(1) provides that the worker has the right not to be subject to any detriment by any act, or deliberate failure to act by his employer, on the grounds that he sought to exercise the right to be accompanied or sought to accompany a worker in accordance with section 10. It expressly provides that accompanying workers have rights whether or not they share the same employer as the worker seeking accompaniment. The effect of subsection (2) is that existing provisions permitting a worker to complain to an employment tribunal that he has been subject to detriment on the grounds defined by sections 44-47 of the 1996 Act are to apply on contravention of subsection (1). This means that the employer will be placed under an obligation to show the ground for which he acted (or failed to act) detrimentally. The effect of subsection (3) is that where a worker is dismissed because he exercised or sought to exercise his rights under section 10, or accompanied another in accordance with that section (or sought to do so), the dismissal will be automatically unfair. Subsection (4) provides that subsection (3) is not subject to any age limit or qualifying period. Subsection (5) extends the availability of interim relief, provided for by sections 128 to 132 of the 1996 Act, to dismissals for exercising or seeking to exercise the right to be accompanied or to accompany. Subsection (6) provides that references to an “employee” in relevant parts of the 1996 Act are to be taken as references to a “worker”.

198.Section 13(1) defines “worker” for the purposes of these rights. The definition includes agency workers (defined in subsection (2)); home workers (defined in subsection (3)); persons in Crown employment (except members of the naval, military, air or reserve forces of the Crown); and relevant members of House of Lords or House of Commons staff. In the case of an agency worker, either the agent or the principal is deemed to be the employer. In the case of a home worker, the employer is deemed to be a person who contracts for work from a home worker. Subsection (4) defines “disciplinary hearing” for the purposes of section 10 as one which could result either in (a) an employer administering a formal warning to a worker; or (b) an employer taking some other action against him; or (c) the confirmation of a warning issued or other action taken. (This third category is intended to cover appeal hearings where a sanction might be endorsed or removed.) Subsection (5) defines a grievance hearing for the purposes of section 10 as a hearing which concerns the performance of a duty by the employer in relation to a worker. Subsection (6) sets out the definition of “working day” for the purposes of ascertaining whether workers have suggested an alternative date for a hearing within the time limit of five working days.

199.Section 14 prohibits individuals from opting out of the provisions or from waiving their right to bring tribunal proceedings under sections 10-13, and makes available conciliation procedures. Section 14(a) applies certain provisions of section 203 of the 1996 Act to sections 10-13. This has the effect that any provision in a contract of employment or other agreement is void to the extent that it would exclude or limit the effect of the rights conferred by sections 10-13 or prevents a worker complaining of a breach of the rights. The only exceptions are settlements of tribunal cases made with the assistance of an ACAS conciliation officer under section 18 of the Employment Tribunals Act 1996 and legally binding compromise agreements to settle tribunal cases which comply with section 203(3). Section 14(b) applies certain provisions of section 18 of the Employment Tribunals Act 1996 to rights under sections 10-13. This provides that ACAS conciliation officers have a duty to attempt to promote a settlement of tribunal cases relating to those rights proceedings

200.Section 15 exempts members of the Security Service, Secret Intelligence Service and the Government Communications Headquarters from the rights conferred by sections 10-13.

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