Statutory Right To Be Accompanied: When Does It Apply?

Those of you who have had formal hearings with employees, whether it’s a disciplinary hearing or grievance hearing- you will notice that you are advised to allow the employee to be accompanied by either a trade union official or a fellow employee. This is known as the statutory right to be accompanied (SRTBA).

In this article we look at what the SRTBA really means when it applies and why.

What does the SRTBA mean?

• The SRTBA means that an employee may be accompanied by a trade union official or a work colleague.
• The right applies to employees and workers, including agency workers, part-time employees, those on zero hours contracts and fixed term contracts.
• It applies from day one of employment.
• The SRTBA applies to the following types of hearings:
  • Any hearing where the outcome could be a disciplinary sanction such as a warning or dismissal.
  • Hearings where the outcome could be the termination of an employee’s contract for reasons other than their conduct. For example, capability (performance), a final redundancy consultation meeting, a medical capability hearing- after which an employee may be dismissed on the grounds of ill health.
  • Formal grievance hearings- which is a formal hearing to discuss an employee’s dispute with their employer.

The SRTBA doesn’t apply to informal investigation meetings, return to work meetings, general meetings between the employer and employee. We do advise clients to consider offering the right to be accompanied to other types of hearings such as a probation review, purely from a good practice perspective but this isn’t a legal requirement.

What if we don’t recognise a trade union?

If you don’t recognise a trade union, you are still advised to allow your employee to be accompanied by a trade union official.

Whilst you may not have any formal recognition agreements with any trade unions, your employee may be a member of a union and if they are, they can be accompanied by a trade union official from that union.

Are there any rules that someone accompanying an employee must follow?

Yes. Some representatives will want to take an active role in the hearing, and some may simply be there for moral support or to observe.

An employee’s chosen representative can:

• Confer with the person they are representing
• Ask questions
• Present the employee’s case either verbally or in writing and sum up at the end
• Take notes. Any audio/video recordings must be done with express agreement from all present.

An employee’s chosen representative should not:

• Answer questions put directly to the employee on the employee’s behalf
• Someone representing an employee at a hearing is not there to disrupt or obstruct the hearing in any way. A trade union official will be well versed in the rules when accompanying someone but a colleague who is representing someone may not be, so you are advised to make clear what they can and cannot do.

What if their chosen representative isn’t available- do I have to allow a postponement?

Yes. If an employee’s chosen representative is not available at the time the hearing is scheduled, there can be a postponement period of 5 working days following the date of the originally scheduled hearing. Alternatively, you can mutually agree a suitable time to suit both parties.

Can I check a union reps credentials?

Yes. A union representative should carry their union identification. You can verify they are who they say they are with the union if you wish to do so.

If an employee wants to bring a colleague who is a witness or a co-accused- can I refuse this?

You cannot prevent someone from exercising their right to be accompanied but you can refuse to allow certain persons to represent an employee if the request is not reasonable. An example, of this would be a co-accused or a witness.

Always ensure you seek our advice before denying entry to an employee’s chosen representative.

What if an employee doesn’t want to accompany a colleague- can they refuse?

Yes. No-one can be forced or suffer a detriment if they do not wish to accompany someone.

Likewise, it is unlawful to subject someone to less favourable treatment because they have represented someone at a formal hearing. This will be classed as victimisation.

Am I breaking the law if I refuse to allow someone to be accompanied?

Yes, and the award can be up to two weeks pay.

What if an employee wants to bring a family member to a hearing- do I have to allow this?

You should allow someone to be accompanied by a parent or guardian if they are under the age of 18.

Other than that, family members, legal advisers, or friends, do not have a right to accompany an employee and you are perfectly within your rights to turn them down.

There may be occasions where you should consider a request to allow someone other than a union representative or colleague to accompany an employee. For example, in the case of a medical capability hearing to determine whether someone is medically capable of continuing to work, a family member or friend may be advised. Likewise, be aware of reasonable adjustments in the case of someone who has a disability, such as allowing someone to be accompanied by a mental health advocate where necessary.

And finally…..remember that the right to be accompanied is a statutory one, so please make sure you seek our advice before taking action.