Is a “companion” entitled to pay?
Under section 10 of the Employment Relations Act 1999, workers and employees have the right to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing.
Where an employer fails, or threatens to fail, to comply with this right to allow the individual to be accompanied, the worker or employee may bring a tribunal claim. If upheld, the tribunal must order the employer to pay compensation of up to two weeks’ pay. Employers should not only be aware of this right, but also should consider the rights of the companion.
The right to be accompanied applies where a worker (1) is required or invited to attend a disciplinary hearing by their employer and (2) if the worker reasonably requests to be accompanied at the hearing. For the purposes of this right, a disciplinary hearing is one that could result in:
- a formal warning being issued to a worker;
- the taking of some other disciplinary actions, such as suspension without pay, demotion or dismissal; or
- the confirmation of a warning or some other disciplinary action, as would be the case with an appeal hearing.
Rights of the companion
A worker (regardless of whether they are also a trade union official or not) has a right to be paid for time off during working hours to act as a companion to another worker at a disciplinary hearing. Furthermore, employers should take care to not subject the companion to any detriment (or dismiss them) because they have acted, or sought to act, as a companion.
The amount of time, occasions, purposes, and any other conditions imposed by the employer must be reasonable. Acas guidance suggests that the time off should cover the hearing itself and that the employer should allow time for the companion to get familiar with the circumstances, as well as discussion time with the employee before and after the hearing.
Where the employee or worker chooses a fellow worker (rather than a full-time trade union official) to accompany them, the companion has a right to paid time off. If the companions pay would not usually vary based on the amount of work done (e.g. they receive a fixed salary) they should be paid as if they had worker at work for the whole of the time. Where their pay does vary, the pay should be based on their average hourly earnings for that work.
If you require any assistance with disciplinary processes, or particularly the right to be accompanied (and the rights of companions), please contact a member of our employment team.