Workers have the statutory right to reasonably request to be accompanied at a disciplinary or grievance hearing.

The first thing to note is that your meeting needs to be one at which some kind of disciplinary outcome will be arrived at or decision made as to whether a grievance is upheld – there is no right to be accompanied at investigation stages in the process although many employers go above and beyond their duties and allow it.

The request should relate to being accompanied either by a colleague or a trade union representative. Generally speaking there is no right to bring along your lawyer or your mother!

For a long time we’ve advised people that the word ‘reasonably’ used in the legislation gives you some wriggle room: if the employee was asking to be accompanied by a colleague who is also under investigation there could be a conflict of interests with them trying to ‘cook up a story’ together or that if the employee was asking for someone from your farthest flung location to come it might be unreasonable when there were various colleagues onsite and available.

However recent case law changes all this. The Employment Appeal Tribunal had to decide if the employer can decide the person chosen is unreasonable and reject the worker’s choice.

In the case of Toal v GB Oils, the workers wanted to be accompanied by a particular trade union official which the employer refused, instead allowing them to bring a different one.

The Employment Appeal Tribunal rejected the employer’s argument that the word ‘reasonably’ in the legislation applies to the choice of companion as well as to the request to be accompanied.

This was despite the ACAS Code guidance that ‘it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing’. The EAT pointed out that the Code cannot help in the construction of the law, which is a role purely for the courts.

So now as long as the chosen companion comes within one of the permitted categories, then there can be no interference with the worker’s choice and employers interfere with that choice at their peril.

Anna Denton-Jones