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The right to be accompanied

07 June 2017 by Lydia Newman

The right to be accompanied - read more

Employees can have access to support at disciplinary hearings

Employees have a statutory right to be accompanied at a disciplinary hearing by either a trade union representative or a colleague. In this context a disciplinary hearing is construed widely and includes a hearing where a worker might be issued with a formal warning, might be issued with some other disciplinary action (that is, suspension, demotion or dismissal), or where a warning or some other disciplinary action might be confirmed, such as an appeal. It includes capability hearings as well as conduct hearings.

For some time it was thought that the right to be accompanied was limited by a requirement for the chosen companion to be reasonable. For example, many employers would limit the choice of companion to a colleague from the same workplace. Following the case of Toal v GB Oils Limited in 2013, that was shown to be incorrect. The choice of companion cannot be limited in such a way.

The companion can be someone who is employed by the trade union of which they are an official; or any other official of a trade union who has been certified in writing as having appropriate experience or training; or another of the employer’s workers. The right is not limited beyond this. There is relatively little case law post-Toal, which deals with the appropriate level of compensation to be awarded in the event of a breach of the statutory right.

“Although there is no general right for a worker to be entitled to legal representation, there are certain circumstances where such a right might apply”

Employers should also consider their own procedures, which might extend the statutory right, but cannot reduce it, and note that although there is no general right for a worker to be entitled to legal representation, there are certain circumstances where such a right might apply.

For example, where an employee is disabled and doing so might be a reasonable adjustment under the Equality Act 2010; where there is a contractual right; or where the outcome would have a substantial influence on a decision of a regulatory body that can bar someone from their chosen profession.

In the case of Gnahoua v Abellio London Limited (2017) it was suggested that the appropriate level of compensation for a breach of the right to be accompanied should be a nominal £2 (as suggested in Toal). However, employers should be cautious, because it is clear that a nominal sum was awarded in this case because there was no loss or detriment to the claimant. Had there been so, the compensation could have been much higher, up to two weeks’ pay.

Perhaps more significantly, such a breach could also amount to a breach of the ACAS Code of Practice, which then has the potential to result in a tribunal increasing the compensation awarded (for example, unfair dismissal compensation) by up to 25% if the failure to follow the Code is found to have been unreasonable. Employers should beware of not considering the detail behind reported judgments and taking the ‘headline’ at face value.

General election

The calling of the (imminent) general election on 8 June resulted in Bills not passed by the dissolution date lapsing, and statutory instruments not passed needing to be reconsidered by Parliament after the election.

There is therefore a clear risk of delay to various employment law-related matters, such as the Finance Bill, which included provisions on the taxation of termination payments to employees and various other private members’ bills, such as the Gender Identity (Protected Characteristics) Bill, which sought to replace the existing protected characteristic of ‘gender reassignment’ under the Equality Act 2010 with ‘gender identity’.

Also, should Labour win the election, it is likely Jeremy Corbyn will repeal the Trade Union Act 2016, increase the national minimum wage to £10 an hour for most workers, introduce additional bank holidays and ban zero-hour contracts.

Perhaps less likely employment law-related outcomes of the election would be the Green Party’s introduction of a three-day weekend and UKIP’s ban on wearing face coverings in public places.

Attitude to organisational change

Many managers will be tasked with enacting decisions they might not personally agree with, but can managers’ poor attitude to organisational change be sufficient to justify their dismissal? A recent case Court of Appeal case, Adeshina v St George’s University Hospitals NHS Foundation Trust and Others, concerns a manager who disagreed with organisational change and was subsequently dismissed.

Ms Adeshina was unhappy with proposed changes to the way pharmacy services were delivered at Wandsworth Prison, where she was Head of Pharmacy Services. She was ultimately dismissed, upheld at appeal, with her employer relying on her alleged unprofessional behaviour during a meeting about the proposal, and alleged failure to support and lead the change.

Despite some procedural issues being identified, the Court of Appeal did not interfere with the Tribunal’s finding, upheld at the Employment Appeal Tribunal, that Adeshina’s dismissal was fair. The behaviour of Adeshina was sufficient to justify her dismissal.

The case raises a number of interesting points, largely by way of confirmation of established principles, which serve as useful reminders to employers:

  • Procedural defects can be remedied on appeal, but should, of course, be avoided in the first instance and it may be sensible to approach any appeal where defects have been identified in earlier stages as a re-hearing.
  • Difficulties in identifying appropriate appeal managers are recognised by tribunals, but care must always be taken to try and ensure adherence to the ACAS Code of Practice and any departure will require careful explanation.
  • The ‘calling-in’ letter should ensure that employees facing potential disciplinary action know why they are required to attend a disciplinary hearing. An overly formulaic approach is not required. It may be possible to rely on issues discussed at an investigatory stage when considering whether the employee knew the case to answer. Care should be taken to ensure that the calling-in letter, so far as possible, is adequately detailed.

Fishy goings-on in Manchester

It was recently reported that employees at a Manchester call centre were allegedly subjected to the odd ritual of having (presumably) dead squid lowered onto their faces in the event of poor sales performance.

This clearly raises a host of potential concerns, not least whether the use of squid was condoned as a bona fide performance management technique, but, joking aside, this story adds to a good deal of recent negative press coverage about employment law-related matters. Readers will easily recall, among others, recent stories about zero-hours contracts, Uber, Sports Direct and a temporary receptionist obliged to wear high heels.

“Remember there are many ‘good news’ stories out there that do not often attract media attention”

Accordingly, this month’s employment law update ends with a note of caution, namely to ensure that, as responsible employers, you do not become disenchanted with negative HR and employment law stories. Remember there are many ‘good news’ stories out there that do not often attract media attention. So, although it is always important to highlight and act upon poor employment practices, it is equally important to focus on the positive aspects of employment.

Lydia Newman is an Employment Solicitor

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