Clowning around at disciplinary hearings – how far does the right to a companion go?

Kate Dew

We are often asked to advise whether a lawyer or parent can attend disciplinary hearings but we have never come across a clown acting as a companion. According to the New Zealand Herald, an employee hired a clown to take as a companion to his redundancy meeting, who proceeded to make animal balloons during the meeting and mimed crying when the redundancy paperwork was passed to the employee. Humorous? Absolutely. Advisable? Probably not. So how far does the right to a companion go in the UK?

A worker in the UK who is invited to attend a disciplinary or grievance hearing can make a reasonable request to be accompanied by a colleague or trade union representative. A “disciplinary hearing” is defined as a hearing which could result in the (i) administration of a formal warning to a worker by his/her employer; (ii) taking of some other action in respect of a worker by the employer; or (iii) confirmation of a warning given or some other action taken. Whilst there is uncertainty as to whether a redundancy meeting constitutes a “disciplinary hearing” for the purposes of the legislation, it is common practice for employees to have companions in these circumstances.

Case law has established that the right to be accompanied at a disciplinary hearing is an absolute right and, as long as the employee’s chosen companion is a colleague or trade union representative, the employer cannot lawfully refuse the employee’s request. However, the role of the companion is limited. There is no right to:

1. answer questions on behalf of the worker;

2. address the hearing contrary to the worker’s express wishes; or

3. act in a way that prevents the employer explaining its case or prevents any other person making a contribution to it.

There will also be cases where an employer simply cannot allow the worker to bring their choice of companion to a disciplinary or grievance hearing, notwithstanding the employee’s absolute right. This could be the case where a companion has been selected to represent several employees in linked disciplinaries, or where companions have a vested interest in the outcome. The basis of the refusal is usually that the companion could be prejudicial to the hearing (eg there are concerns about confidentiality). Where a worker’s choice of companion is refused, the worker can bring a claim in the employment tribunal for up to two weeks’ pay (capped at the usual statutory cap). They may also attempt to rely on such refusal to challenge the procedural fairness of any dismissal or to seek an uplift of up to 25% in any compensation awarded in the employment tribunal (for example for unfair dismissal) as a result of an unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Outside of the normal framework, employers may receive requests for parents to attend for young or vulnerable workers or lawyers where the outcome can be career-limiting. Whilst there is no right to these companions, requests should be considered and dealt with on a case-by-case basis, although generally requests for lawyers should be resisted unless the circumstances are exceptional. The exception to the rule is where a worker is disabled, as it may amount to a reasonable adjustment to make special provision for a companion.