Send in the clowns? Who can act as an employee’s companion?

Coulrophobia is a persistent and irrational fear of clowns.

Unfortunately for those with this specific dread, there’s been quite a bit of clowning around this month.

First, the chilling IT Chapter Two and the controversial new Joker films were released in cinemas. If that’s not enough, employment lawyers were horrified when an employee in New Zealand invited a clown to be his companion at a redundancy meeting.

Unlike Stephen King’s demon clown, Pennywise, or the murderous Joker, the companion clown simply made balloon animals during the meeting and mimed weeping when the redundancy paperwork was finally handed over.

Although clowns are a bit of departure from the norm, we’re often asked who can attend disciplinary or other hearings as a companion, and to what extent they can participate in the proceedings.

Clowning around?

How far does the strict right to a companion in the UK actually go?

Well, not very far. Usually.

A worker in the UK invited to attend a disciplinary or grievance hearing has a right to be accompanied by a colleague or trade union representative. This means it’s not normally unlawful to turn away family members, friends, lawyers or even emotional support clowns. (I will ignore comments that the last two may often amount to the same thing).

A disciplinary hearing is defined in legislation as a hearing that could result in —

  • The administration of a formal warning
  • Taking of some other action
  • The confirmation of a warning issued, or some other action taken (appeal hearings, for example)

This includes, but goes beyond, disciplinary hearings for suspected misconduct.

If the employer is holding what it terms a ‘capability’ hearing to discuss performance issues, the statutory right to be accompanied would still apply if it is likely to result in a formal warning or some other action.

The role of a companion

In relation to their role at any hearing, the worker’s companion is not restricted to merely taking notes. They can put the worker’s case forward and respond on the worker’s behalf to any view expressed at the hearing.

However, the companion has no right to

  • Answer questions appropriately directed at the worker
  • Address the hearing if the worker does not want them to
  • Prevent the employer from making its case, or prevent any other person from making a contribution

Where an employer wrongly refuses a worker’s right to a companion, the worker can bring a claim in the employment tribunal for up to two weeks’ pay (currently capped at £525 per week).

The worker may also try and use such a refusal to challenge whether the dismissal was procedurally fair. If an employment tribunal finds the dismissal was unfair, the worker can receive an uplift of up to 25% in any compensation awarded as a result of an unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures, which includes the right to be accompanied.

Reasonable behaviour

Whilst there is no absolute right to allow family members or lawyers to attend meetings, it is not unusual for employers to receive these requests where an individual is vulnerable or the hearing has potential to seriously affect their future employment.

Employers should consider each request on an individual basis. In particular, where a worker is disabled, it may amount to a reasonable adjustment to make special provision for a companion.

Finally, it should also be remembered that when a tribunal looks at the actions of an employer, in particular in a claim of unfair dismissal, one of the questions it often needs to answer is whether the employer has behaved reasonably.

Sometimes a narrow application of rules may well be seen as being unreasonable, and that includes appearing inflexible when considering the right to a companion.

Accordingly, we often recommend that accompaniment is allowed at hearings that may go beyond the strict statutory right such as at investigatory meetings and redundancy hearings, or that others are allowed to attend beyond the colleagues and union reps.

Despite this, lines need to be drawn, and when it comes to clowns, I’m 100% with the coulrophobics.

Alanah Mills

Aberdeen-based solicitor Alanah provides employment law, human resources and data protection advice to a wide range of commercial clients.

Posted, 30 September 2019 by Alanah Mills
Categories: Employment | Insights