Category: Investigations

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Anna Denton-Jones Anonymity Confidentiality Data Protection Act 2018 Data Use and Access Act 2025 Employment Law Employment Rights Act 1996 Freedom of Speech Investigations Privacy

Monitoring exchanges in WhatsApp

WhatsApp icon on a phone screen

Your average employee and their manager are merrily commenting to each other and their colleagues using apps such as WhatsApp, because such applications are an easy way to communicate, saving  time compared to picking up the phone to each other, interrupting each other or sending a more formal email. However, to your average employment lawyer and HR professional, it can feel like the lid coming off Pandora’s box.

You are probably all aware of recent examples of harassment where employers have got into trouble because of the content of messages on Apps (Met Police being an example that hit the news). Today I was reading about an example in ‘People Management’ where a misogynistic older male had sent a female colleague nearly 200 messages that were wholly inappropriate for the workplace including memes, jokes that the sender probably would put down as “banter” and so on. In that particular case, the employee was awarded £19,000. It is for good reason that we are all triggered with concerns as we are asked to delve into this area but that is not the focus of this thought piece. I wanted to focus on the extent to which the employer is able to access WhatsApp messages, for example, if they are stored on a company device.

This largely depends on what you have set down in writing to the employee. An employee will have a reasonable expectation of privacy in their working life, which will include their office space which also now includes their “device space”. So, if the employee is having a chat with their friend, for example, or their partner, they are likely to have a legitimate expectation that that conversation is private in just the same way as in the Halford case years ago, where the employer got into trouble for listening to a conversation with a trade union representative on the telephone. This is why we have to draw to an employee’s attention, what monitoring takes place and you will find statements in policies and in contracts managing that employee’s expectation, so setting out when, for example, a manager is likely to be reviewing the content of their laptop or their device, such as if they go on holiday or if they are off sick. Just because a non-work related matter is being stored on a work laptop or a work phone or iPad, doesn’t mean it loses the quality of privacy in the sense of management of expectations.

You could go further these days and spell out that if employees use things like Facebook or WhatsApp on work equipment, that they should not have any expectation of that communication remaining private. For example, if a manager does have to access the device or after the employee leaves, if they have left those applications open and we then discover something, we are able to use that evidence…

Having said all that, my experience of the Employment Tribunal system is that they do have discretion over admissibility of evidence. Whilst you may have technical legal arguments as to why something has been obtained in an inadmissible way, the Tribunals as opposed to the Courts in the UK, tend to be much more relaxed and are just interested to see the content of the messages and rule on how they affect the legal questions before it. From an employee perspective, it can be deeply frustrating to feel violated in terms of your privacy rights and then find that arguments along those lines don’t get you terribly far and the Tribunal’s focus remains on the substantive claims you are bringing.

I have also recently seen the first examples of emojis causing significant offence and a harassment and victimisation claim but in this particular instance it was the crying with laugher emoji that was the issue. This illustrated that the combination of the emoji with the words used alongside it turn what might be relatively innocuous into the recipient being able to argue that it was offensive. Make sure you have updated your policies to include offence being caused by emojis…

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Articles Disciplinary Employment Law Investigations

The Tolley KC investigation into Dominic Raab

Lincoln's Inn street sign in London

Anyone who takes on the role of investigating officer, whether it’s into grievances raised by employees or disciplinary matters, should read Adam Tolley KC’s investigation report produced for the Prime Minister, because it is a master class in how the findings of an investigation ought to be presented.

Firstly, he sets out what his terms of reference were, which is particularly important for those who are appointed externally by an organisation – often when I am acting for the employee, I ask about terms of reference and am shocked by how often organisations have not set out the scope of an investigation. Also, if data is being shared with a third party as part of the investigation, then the Data Protection implications of this needs to be addressed somewhere?

The Report commences by setting out the relevant policies and what they say. Obviously as a bullying investigation, the definition of bullying is set out. In this particular example, he has referred to case law reports within the civil service, but an employer is likely to have a policy setting out what they regard as bullying or if they don’t then there is always the ACAS definition to be referred to.

The Report describes the methodology followed. Tolley goes to lengths to explain the submissions made by Dominic Raab, both verbally and in writing and addresses his representations and how he has factored in those things to his decision-making process. For example, representations about complaints not having been made contemporaneously with events some years down the line or the availability of direct documentary evidence. When you read the explanation as to his thought process, you are able to understand that he has weighed up considerations and to understand decisions he has made along the way.  This has the benefit of being transparent, reassuring the employee, in our case, who is at the centre of the investigation, that things have been dealt with fairly. Reports that lack this level of detail are often criticised by the subject, as it will appear that certain things have not been taken into account when actually they might have been.

Adam Tolley also goes into the background first with a detailed description of the Deputy Prime Minister’s working style. The advantage of setting out this background is that not only does it give another opportunity to show fairness and balance, it is useful for anyone reading the report outside of an organisation to understand the context. This will be potentially important if there is an appeal to be dealt with or, in our case, an Employment Tribunal.

The Report is forensic in that it breaks down complaints or allegations into constituent parts and addresses each element in turn. In taking that approach, he is able to sift through those items for which there is evidence and items where there is not, and that gives you a feeling of balance in that he has acted fairly, only finding fault where there is evidence to suggest there was, for example, when it comes to physical gestures like table slamming and shouting and swearing, Dominic Raab was not found to have acted inappropriately. It also enables us to see that each aspect has been covered.

The Report looks at the history – in a disciplinary context, this might be previous disciplinary warnings or whether any informal meetings have ever been held about conduct previously. Here there were certain communications which sought to alert the Deputy Prime Minister to the existence of an issue with his behaviour but those communications did not use the word ‘bullying’.

Where he talks about witnesses, Tolley shows his thinking in terms of the reliability of those witnesses and whether or not they may have had any motive to complain – this is often useful in a Report to articulate why, for example, a particular witness should be believed or not. In this particular case, there is a discussion around so called “snowflake” reactions and the resilience levels that can be expected from civil servants. You would expect any investigating officer to be able to talk about the extent to which they felt witnesses were acting in good faith and in bullying cases in particular, perhaps commentary on the impact the experience had on their health. Adam Tolley recognised the impacts communicated to him were genuinely experienced and this will be the case where we are not focused on the intention of a protagonist but rather the impact that behaviour has had (harassment cases for example).

The Report discusses confidentiality and how that has been addressed and its relevance to the findings in the Report. This is particularly important if the identity of individuals is going to be protected, for example, in harassment cases. In the Tolley Report, because he knew it was going to be published to the public, he has had to work hard to protect the confidentiality of individuals (only two people are named, with their consent) and that has resulted in some detail being omitted and kept between him and the Prime Minister. That would obviously differ in an employment context where the detail and the information would be included in the Report and it’s appendices, although occasionally a decision may be taken to anonymise witness statements and to omit details which would betray the identity of the witnesses.

We can all learn from this example, quite apart from the debate around what is or isn’t bullying. A link to the actual report can be found in the following link:

https://www.theguardian.com/politics/2023/apr/21/dominic-raab-investigation-raises-questions-about-rishi-sunaks-judgment?CMP=Share_iOSApp_Other

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Criminal Finances Act 2017 Employment Law Fraud Investigations Risk Assessment Whistleblowing

Corporate fraud – Have you audited where your weak spots are?

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With everyday headlines about a cost-of-living crisis and employers pay rise intentions or activities running at well below inflation, employers are potentially more vulnerable to staff deciding to take matters in their own hands. I remember doing training alongside some senior ex-Police Officers who advised me that for corporate theft or fraud to take place, there only needs to be an opportunity and motive. As staff are beginning to feel the pinch then the motive may be there so it then comes down to whether or not within the structure of that person’s job, the opportunity exists.

Opportunity might come in the form of handling cash, payroll, dealing with corporate credit cards or even recording sales on your system. During the last couple of years, I have seen fraud cases involving each of these activities as well as the well-worn example of an employee having private work done for personal gain on the employer’s own resources.

Because we trust our colleagues, we don’t like to think about the fact that somebody might do something that we wouldn’t do ourselves or think negative thoughts about others. However, I come across this scenario often enough to know how heart-breaking it is for colleagues who feel betrayed when it happens and is discovered in practice.

For that reason, it might be worth thinking about whether there are any weak points in your structures: look at them with a stance of ‘If I was going to try and take advantage here, what could I do and how could I do it?’ For example, if I process payroll, do I also process my own salary or does someone else have to see it? If I am setting up suppliers on the system what is to stop someone creating a fictitious entry or setting up one of their friends and then paying ‘fake’ invoices?

Anna Denton-Jones
Refreshing Law

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Alternative Dispute Resolution Anna Denton-Jones Communication Conflict COVID-19 Disciplinary Employment Law Grievance Investigations Return to Work Stress Victimisation

Why we might be seeing more conflict and mistakes

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You may have noticed some of the following since the pandemic:

• People getting more upset than “normal” over something relatively trivial.
• People having a very emotional reaction to something they are asked to do, for example, returning to the office.
• An increase in conflict in situations where previously this would have been less likely to happen and employees being less resilient.

There is a brain science explanation for all of this. We have at brain chemistry level, been living within an environment of constant and invisible threat for 18 months. During a situation of stress such as this, the limbic system goes into overdrive and more complex parts of our brain such as the prefrontal cortex are used less.

This all makes sense in an emergency: we need our brains to focus to enable us to deal with the threat. For example, I had somebody drive into the back to me recently at speed while I was stationary in the car. The limbic brain function enables you to calmly deal with the situation but in that state it becomes much harder for us to think rationally, deal with complicated decisions and we become error prone.

This might also explain why, if you are feeling that you are just trying to do something relatively straight forward that you have always done but for some reason it feels more challenging than previously. We overloaded the system. I always remember a junior doctor talking about how they coped with their very long shift working and all that their job brought with it but would burst into tears when they found that the toothpaste had run out. It’s a perfect illustration of the pressure on our system, suppressing the prefrontal cortex and yet reacting emotionally, losing our tempers more and being unable to talk ourselves down in the way we would normally.

Normally the prefrontal cortex is able to talk to the limbic system essentially telling it to calm down and behave more rationally but if we are stressed, tired or sick then that becomes more difficult. We know how exhausted everyone is saying they are, particularly those who have worked in the front line or who have had to step up in other ways to see their organisation through the last 18 months, we can see why normality is being impaired.

This is why everybody feels a bit on edge but can’t really articulate why – it is normal when you’ve survived some kind of disaster.

The brain is immensely adaptable and will figure its way through this phase. It can even be a good thing where people will grow as a result of the experience, with the majority returning to functioning as they did before and a small proportion effectively experiencing post-traumatic stress disorder. Researchers are even beginning to talk about the common outcome being long term resilience but for the meantime, what can we do?

We have to accept that a cohort of the workforce are feeling immense fatigue and have short levels of concentration or simply struggling to concentrate at all. We have to recognise when this is happening that it’s not necessarily a permanent state of affairs and that we need to provide support rather than go straight to performance managing out. It may even help to talk about this to get people to understand what is going on so that they accept their emotional state, rather than trying to fight against it. This reduces them being stressed about being stressed in the first place. It stops people dwelling and feeling increasingly negative. Dealing with what’s going on in a non-judgemental way can drag that prefrontal cortex back into the picture and give it a chance to quieten down the limbic system. If people are in a state of anxiety it can be quite easy to end up in a negative spiral where that becomes the dominant emotion.

When we are in a particular mental state we tend to dwell on the particular emotion that we are feeling and remember all of the other times that we have felt this way rather than all the other times when we haven’t felt this way. It may help people to understand that this is what happens and that dwelling on something more positive can help the brain chemistry.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Dispute Management Employment Law Employment Rights Act 1996 Employment Tribunal Grievance Investigations Victimisation

Dangers of a victimisation claim

Royal Courts of Justice, London

A recent case illustrates the risk employers face every time they receive a grievance in relation to a victimisation complaint.

If the grievance has any kind of discrimination angle to it, bullying harassment or an argument about less favourable treatment because of a protected characteristic or an allegation that the employer has failed to make reasonable adjustments to accommodate a health issue, the employer also runs the risk of a victimisation complaint.

The raising of the grievance, if it references the protected characteristic and allegations of some form of discrimination, becomes a “protected act”. If, as a result of that protected act, the employee then suffers some other detriment, this will give them grounds to claim victimisation.

This can be as simple as suffering the consequences of colleagues knowing that a grievance has been raised and behaving differently towards the person who has raised the grievance as a result. For example, a manager who has been accused may be very angry about the accusation that has been made or other colleagues who are interviewed as witnesses in the grievance process might change their behaviour towards the individual, “sending them to Coventry” or even telling them that they agree with what the employee has done. One of the first mediations that I was ever involved with, involved this scenario where a colleague clearly felt a manager didn’t deserve to be criticised by the other employee who had raised a grievance.

A recent case that illustrated this, was a case against Online Travel Training Group Ltd by Mr Weinreb. He was a Business Development Manager and had some kind of altercation with a Finance Manager after asking for her help. It sounds as though the Finance Manager didn’t like the employee and felt he should have known how to do the things he was asking for help with. The Tribunal felt that she goaded him and created conflict. Another colleague implied Mr Weinreb had been Jewish during a discussion about team work, and he also alleged that a conversation about the gay dating app ‘Grinder’ implied his colleagues thought he was a closet homosexual.

The case ended up in cross-grievances – the Finance Manager raised a grievance against Mr Weinreb because he recorded a conversation held about his commission. Mr Weinreb raised a grievance alleging discrimination and complaining about how an employment review meeting had been held.

Faced with the cross-grievance, the Managing Director missed the opportunity to go to a mediator and really get to the bottom of what was going on between the two individuals. Instead the pair were told that they should only communicate with each other by email (Tip: never go down that route).

Matters were investigated but played down – the Finance Manager was reminded of her obligation to show respect to her colleagues. Mr Weinreb attended a Grievance Outcome Meeting with the Managing Director who sounds like she lost her temper. At one point, she banged on the desk and told Mr Weinreb that she was very upset and offended by his allegations of discrimination about his colleagues (Tip: never do this!).

Mr Weinreb clearly didn’t feel listened to and this is a very important part of any grievance process and so appealed the grievance outcome.

The company subsequently dismissed Mr Weinreb for his “unacceptable conduct”. The Managing Director felt that his allegations had been spurious.

The banging on the table at the grievance outcome and failure to give Mr Weinreb any details about why his employment was being terminated were the acts of victimisation in this particular case. It was found that the Managing Director would not have behaved in the way that she had, had the employee not complained of discrimination in the first place.

Since employers are vulnerable to the emotional responses of those accused in grievances and those around them, it is very important that employers must always make it clear to those involved that any mistreatment of the employee who has raised a grievance will, in itself, be a disciplinary issue and that they are alert to their behaviour so that they can take action when necessary.

Refreshing Law
3 June 2021

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Acas Anna Denton-Jones Disclosure Employment Law Employment Rights Act 1996 Employment Tribunal Grievance Investigations

Does an employer have to disclose the investigation report?

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At first glance, one might think the answer to this question was rather obvious, in that the employee raising the grievance is going to want to see that the investigation has been done thoroughly and fairly in order to be able to accept that the employer is following the correct processes based on the evidence.  Indeed, if you didn’t disclose these papers to the employee, it is likely to foster distress and further antagonise what may already be the steps on the way to a breakdown in trust and confidence between the parties.

Having said that, are there circumstances in which you can decline to show the employee parts of the evidence?  It is worth noting that the ACAS Code of Practice in relation to grievance procedures does not grant a specific “right” to the employee to see witness statements or any evidence that is part of an investigation.  

The employer is likely to be having to balance the rights of the employee against the rights of others who have also been named in the report, and to whom it may also owe duties such as  confidentiality, if that were the only basis on which it could obtain evidence.

The ACAS Guide to Conducting Workplace Investigations states “if an individual wishes to see a report they have been named in, they have got a right to see any parts of the report that contains information about them or that is reliant on information they have provided”.  That makes sense because they may want to correct a mistake that you have made in quoting them or if they disagree with an interpretation that has been made by the investigator. The ACAS Guidance goes onto say “however, they should not be allowed to see private information belonging to other individuals”. Thus, you would not necessarily be disclosing to them the entire report.  It may be that in sensitive cases, where perhaps co-operation in an investigation has only been able to be obtained by witnesses being promised anonymity, certain parts of the report/statements would have to be redacted.  In such circumstances, it may be that you change the names and other identifying information to, for example, numbers or letters, say witness B etc.

Ultimately, it is down to the employer to decide what the best thing to do is in each case and we would recommend that the rationale for acting in a particular way is recorded at the relevant time, so that if it is challenged later, at appeal or through the Tribunal, there is a record of the decision-making process.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Data Protection Act 2018 Data Subject Access Requests Disclosure Employment Law Investigations Privacy

Subject Access Request during an on-going process

Data use shown on mac screen

It is not uncommon for somebody who is part-way through a process, such as a performance management process, sickness absence management process, redundancy situation or disciplinary process, to put in a subject access request under the Data Protection Act.

If the employee is off sick or because they’re at a very early stage in the process, they may not even be aware that, for example, a disciplinary investigation has commenced. Or they might not yet be aware of a complaint that’s been received, that you’re looking into that relates to them. Alternatively, you might be towards the end of the process at the appeal stage and you might have a subject access request in an attempt to look for what I call “the smoking gun” they think you have hidden from them in terms of the process so far.

I’ve even heard today of Unions using the SAR as a form of industrial unrest – launching mass employee requests on organisations as part of industrial action.

The first thing to note is that the request under the Data Protection legislation is made in an entirely different relationship with you than the relationship of employee and employer. It is made as a data subject in relation to your position as data controller governed by the rules in the data protection legislation. So, for example, given that you have 30-days under the data protection legislation to access their request and provide them with the data they have asked for, it is entirely possible that your ongoing employment processes will be moving more speedily and for example, a disciplinary hearing or a meeting might be in the diary well before that 30-day period.  There’s nothing in the data protection legislation that requires you to halt your internal employment process or wait until the SAR has been dealt with.

If you have already disclosed the information to somebody for example, as part of an investigation report or in an email notifying them of a complaint against them or as part of a pack given to them for the purposes of an appeal meeting, you have already given them that information so you’re not going to be required to give it to them again as part of the subject access request disclosure – you would just have to cross refer to what you’ve already given them.

The next thing to say about data protection is there is absolutely no substitute in any given situation for tracking through the legislation itself when it comes to determining what you’re required to disclose to the data subject and what you’re allowed to withhold. Making this assessment on the basis of some kind of ‘feel’ is not enough.

There are things you do not have to disclose. This includes:

  • anything relating to negotiations if disclosure would prejudice the negotiations
  • confidential references given by you
  • criminal investigations
  • data processed for the purposes of management planning if disclosure would prejudice the planning (such as telling the subject about a redundancy exercise before the consultation had launched)
  • anything that is protected by confidentiality to a third party or legal professional privilege.

Thus, the list of exemptions is really narrow.  It means most things are disclosable, perhaps with some redaction of bits relating to other people. We all need to bear in mind when we prepare documents that the data subject may see them in future e.g.: – email accordingly.

In your letter to the data subject, which you will send with their response to the subject access request, you need to include a detailed explanation as to how you have gone about your response to the request and why you have excluded anything.

It is important that you consider the rights of other data subjects when processing requests.  If disclosure of the information would identify another individual, you’re not obliged to comply with the request unless the other individual has consented to the disclosure of the information and it is reasonable in all circumstances to comply with the request without the consent of the other person. It is relevant to complaints and investigations – have you informed the complainant that the matter will have to be taken up with the individual? Have you informed those witnesses that have given evidence as part of the process that their evidence is going to be showed to the person that is for example, accused of misconduct?

Where you haven’t got consent, you will have to think about redaction and omitting names and taking out as much as you can that would identify somebody. The legislation itself requires you to take steps with a view to seek consent from the other individual who asks us to look at whether there is any express refusal of that consent.

Of course it is entirely possible that the individual might try and make a second access request if the first request has not revealed what they thought they were expecting and s95(3) requires us to consider whether it is a reasonable interval between the requests having regard to the nature of the data, the purpose for which it is being processed and the frequency with which the data is altered. If you’ve complied with the subject access request and given the employee the data they requested, it is highly likely that you’re going to be able to refuse a second request on the basis that nothing has changed.

Anna Denton-Jones
Refreshing Law

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Alternative Dispute Resolution Anna Denton-Jones Communication Confidentiality Conflict Disciplinary Disclosure Dispute Management Duty of Care Employment Law Employment Rights Act 1996 Grievance HR Investigations Privacy Procedural Fairness

Showing the complaint to the employee

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You will be familiar with the idea that in a disciplinary process the person who is accused of wrongdoing should hear the case against them or should hear or be told the important parts of the evidence in support of that case so that they are given the opportunity to criticise or dispute that evidence and put forward their own arguments. This comes from a case of Spink -v- Express Foods Limited 1990.  But what about the situation where there is a grievance investigation?

The Acas Code is silent on this issue but focuses instead on the person who has raised the complaint. However, as part of the investigation into the complaints that that person has raised, you will need to interview anyone that they have accused of wrongdoing.  For example, there may be an allegation of bullying and harassment.

One option would be to simply show the person, perhaps the line manager, the grievance letter. This is the most open and transparent position and one would hope that any line manager would behave professionally, see the grievance for what it is, and be prepared to answer those allegations in full. This position accords with the concept of ‘natural justice’ – nothing is being hidden and the accused has full opportunity to have their input to what is being said about them.

However, there may be cases where there is a concern that to take this open position would perhaps inflame or fundamentally damage the working relationship between the person who has raised the grievance and, for example, their line manager. The investigator may feel that a better approach would be to not show the full letter to the person who has been accused but rather to take them through the contents of the letter through a process of questioning so that they still have full opportunity to answer what is being said, but perhaps in doing this they can soften the language a little and take some of the ‘heat’ out of the matter.  If the investigator does go down this route they will need to be skilled in questioning and make sure that they do give the full picture to the person so that they are being fair to everybody.  For example, it wouldn’t be appropriate to just say ‘what happened on 5th August?’ You would need to go further and ask ‘Joe Bloggs has stated that there was an argument between the two of you on 5th August. He has said that your voice was raised and that other people noticed that you were shouting.  Is that true?’

If the complainant’s letter refers to complaints against a number of different people then, again, it may be sensible to separate out the allegations so that you are only interviewing an individual about those matters that are relevant to them.

In any event, if the individual (for example, the line manager) is named in a grievance letter, strictly speaking, under the Data Protection Act, they can make a Subject Access Request requesting to see the contents of the letter.  For that reason, again, the employer may want to choose the most open position.

It could also be damaging, as regards the relationship between the employer and the person who has been accused (such as the line manager), if the employer does not disclose the contents of a grievance letter. The line manager may feel that something is being hidden or that they are not being given a full opportunity to answer the case against them, even though at this stage there is no hint of a disciplinary.

The employer will need to carefully weigh all of these issues before deciding how to proceed.  If you have any questions please do not hesitate to contact us.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Employment Law Employment Rights Act 1996 Employment Tribunal Grievance HR Investigations Unfair Dismissal

Three ways to protect yourself against employee claims

Royal Courts of Justice, London

Ultimately, no employer can prevent employees from attempting to bring employment related claims against them. However there are things you can do to protect yourself and put you in a strong position.

  • Firstly and most importantly, put yourself in the employees shoes and think about how you would want to be treated. If you follow that common sense rule you shouldn’t go too far wrong. For example, you are likely to investigate the situation thoroughly, listen to all sides including the employee before making a decision and not jump to conclusions.

Canny employers may draft a provision into the contract of employment enabling them to suspend an employee pending an investigation. This protects the business for example, a disgruntled employee cannot then contact customers or destroy computer evidence relevant to the investigation.

Secondly, follow a procedure.  For unfair dismissal purposes you have to show that not only did you have a good reason to dismiss (such as the person being incapable of doing their job or guilty of misconduct) but you have to show that you have acted fairly and reasonably in all the circumstances. The ACAS Code of Practice on Discipline and Grievance should be the  touchstone here as Employment Tribunals judge you by the standards set out in it and expect you to be familiar with it. It also contains handy flowcharts.

Thirdly, whilst employees are entitled to bring a companion along to a meeting in which they are dismissed (a colleague or trade union official) you may also want to take a witness along. This person could help you take notes of the meeting but is also there to protect you as they can confirm you acted fairly, if challenged.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Articles Employment Law Employment Rights Act 1996 HR Investigations Procedural Fairness

Can you stop an employee bringing someone to a meeting?

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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
Refreshing Law