Ask the Expert: Can an employee bring their partner to a disciplinary hearing? The right to be accompanied explained

This month, I sat with Nita one of our experienced HR Consultant’s to discuss an issue that employers regularly ask us about – an employee’s right to be accompanied at a disciplinary hearing. A recent Employment Appeal Tribunal decision has clarified an important point of law, but does it actually change what employers should be doing in practice?

Nita, why are we talking about the right to be accompanied this month?

Nita: A recent Employment Appeal Tribunal case has clarified when an employee’s legal right to be accompanied actually arises. In the case, the employee attended what he thought was a normal meeting but was dismissed at the end of it. He argued that he should have been told he had the right to bring someone with him.

The Tribunal decided that the legal right only arises if the employee actually asks to be accompanied. If they don’t ask, there isn’t a breach of the legislation.

For me though, the bigger message isn’t about what the law says you have to do. It’s about reminding employers what good practice looks like. Those two things aren’t always the same.

So, when does an employee actually have the right to be accompanied?

Nita: Employees have the right to be accompanied at formal disciplinary and grievance hearings if they ask to be accompanied.

The companion can be there to provide support, take notes, ask questions and help present the employee’s case. They can’t answer questions on the employee’s behalf, but they are there to help ensure the employee can properly participate in the meeting.

Although the law says the employee must ask, I would always recommend that employers make employees aware of this right in every disciplinary invitation. It’s good practice, it demonstrates fairness and it helps avoid misunderstandings.

If the law doesn’t actually require employers to tell employees about the right to be accompanied, why do we always include it in our invitation letters?

Nita: Because we’re not just thinking about the legislation – we’re thinking about following a fair process.

The ACAS Code of Practice recommends that employees are told about their right to be accompanied before a disciplinary hearing. Employment Tribunals take the ACAS Code very seriously when deciding whether an employer has acted fairly, so whilst the recent case clarified the legal position, my advice certainly hasn’t changed.

Including a simple sentence in your invitation letter takes very little effort but demonstrates openness and fairness from the very beginning.

So, who can an employee bring with them?

Nita: The law is actually quite specific. An employee can usually choose either a work colleague, an accredited trade union representative or a certified trade union official.

That often surprises employers because they assume employees can bring anyone they like, but that isn’t the case. The legal right is limited to those categories.

One question we get asked quite a lot is whether an employee can bring their husband, wife, partner or another family member. What’s the answer?

Nita: The simple answer is that they don’t have an automatic legal right to do so.

However, employers can choose to allow it if they feel it’s appropriate. Every situation is different. For example, if someone is particularly anxious, has a disability, or simply needs additional support to fully participate in the meeting, allowing a family member to attend may be entirely reasonable.

My advice is not to apply a blanket rule. Instead, consider the reasons for the request and whether allowing that additional support would help the meeting proceed fairly.

If I agree to a family member attending one disciplinary hearing, do I then have to allow it every time?

Nita: No, not at all.

Allowing someone outside the statutory categories to attend is an exercise of discretion. It doesn’t create an automatic right for every future disciplinary hearing.

The important thing is that you consider each request on its own merits and are able to explain why you’ve reached your decision. Different circumstances may justify different outcomes.

Where I recommend clients exercise that discretion, I also suggest confirming in writing that the arrangement has been agreed because of the specific circumstances of that particular case and shouldn’t be treated as setting a precedent for future hearings.

What about solicitors? Can an employee insist on bringing one?

Nita: Generally, no.  In fact, I would absolutely say no.

A disciplinary hearing is an internal workplace process rather than a legal hearing, so employees don’t usually have the right to legal representation.

There are a handful of exceptional situations where legal representation may be appropriate, particularly where someone’s professional registration could be affected, but those cases are unusual.

For most employers, there is no obligation to allow a solicitor to attend.

What if an informal meeting suddenly becomes much more serious than anyone expected?

Nita: This is where employers can easily run into difficulties.

If it becomes clear during an informal discussion that disciplinary action may be necessary, my advice is to stop the meeting.

Explain that the matter needs to be dealt with through a formal disciplinary process, write to the employee setting out the concerns, provide any relevant evidence and explain their right to be accompanied before rearranging the meeting.

Taking that extra step often makes the whole process much fairer and significantly reduces the risk of problems later on.

Does refusing someone’s request to be accompanied automatically make a dismissal unfair?

Nita: Not necessarily.

Employment Tribunals look at the overall fairness of the process rather than one single issue. They will consider whether the allegations were investigated properly, whether the employee had an opportunity to respond and whether the employer acted reasonably throughout.

That’s why I always encourage employers to focus on getting the whole process right rather than looking for the minimum legal standard.

What’s your biggest piece of advice for employers?

Nita: Don’t look at this Tribunal decision and think it gives you permission to do less.

Good HR has always been about following a fair process, communicating openly and treating people consistently. That hasn’t changed.

Yes, the law says an employee has to ask to be accompanied before the statutory right applies. But in reality, why wouldn’t you tell them? Including that information in your invitation letter costs nothing and helps everyone understand the process from the outset.

If you’re ever unsure whether a meeting should remain informal, whether someone should be allowed to bring a family member or whether you’ve followed the correct procedure, take advice before making a decision. A short conversation beforehand is often far easier – and far less costly – than defending an Employment Tribunal claim afterwards.

Final Thoughts

One of the things we often say to our clients is not to become too focused on what the law says you have to do. Instead, think about what good HR looks like.

The recent Tribunal decision clarifies an important legal point, but it doesn’t change the principles of good people management. Being clear about the purpose of a meeting, giving employees time to prepare, making them aware of their right to be accompanied and dealing with requests fairly and consistently all help to build trust in the process and reduce the likelihood of disputes.

At HR:4UK, we always encourage employers to look beyond simply meeting the minimum legal requirements. Taking the time to follow a fair and transparent process not only puts you in a stronger position should your decision ever be challenged, but it also demonstrates that you value your employees and are committed to treating them fairly. In our experience, that is almost always the best approach.