The Right to a Companion and The Rights of a Companion
Employers and HR professionals frequently struggle with the concept of a worker’s companion and the role of the companion at a formal hearing. Employers should be aware that a worker can claim compensation for an employer’s failure (or threatened failure) to allow the worker to exercise the various statutory rights associated with this role.
To what hearings does the right to a companion apply?
Any worker who is required or invited by his employer to attend a disciplinary, grievance or appeal hearing has the right to be accompanied by a fellow colleague or a trade union representative.
This right applies to:
- all disciplinary hearings which could result in the worker receiving a formal warning or the employer taking some other (probably disciplinary) action with regard to the worker
- all grievance hearings and
- all appeal hearings
The right does not however apply to any verbal or informal warnings.
What is the companion permitted to say and do during this hearing?
During the hearing, the chosen companion is entitled to put the worker’s case to the employer, sum up the worker’s case, respond to expressed views on the worker’s behalf and confer with the worker. Essentially this is a role of support for the employee.
Importantly employers should note that the companion has no right to answer questions on behalf of the worker, address the hearing without the worker’s consent or prevent the employer or anyone else from properly participating in the hearing.
Employers must allow the companion to fulfil this role, if required, at the hearing.
What about postponement requests?
The employer is obliged to agree to a request for a postponement of the hearing to accommodate a chosen worker, provided that:
- the request is a reasonable request and
- any alternative time or date proposed delays the hearing by no more than five working days.
Are there any sanctions on employers for failing to provide these rights to workers and companions?
Workers may bring a claim against the employer where the employer fails to:
- permit the worker to be accompanied by an appropriate person
- allow the companion to exercise their statutory rights at a hearing or
- agree to a proper postponement request.
A worker can also pursue compensation in circumstances where the employer threatens to fail to do any of these things.
What is level of compensation?
Whilst there is a three month limit for pursuing such a claim, successful claims can result in compensation of up to two weeks’ pay. The calculation of a week’s pay is capped at £450 per week.
In conclusion it pays for employers to ensure that they allow their workers (and companions) to exercise these rights. Whilst one employee claiming two weeks’ pay might not be a sufficiently serious deterrent to an employer to getting it right, if you can imagine each of your employees making such claims, the incentive to get it right will be much greater!Simon Allison Partner – Employment Law