HR & Employment Law Insights

Helping family businesses, start-ups, charities, social enterprises, and other growing or established businesses throughout the UK make sense of HR and Employment Law challenges.

We get asked HR related questions every day and each week we will be sharing our top question of the week that we have been asked here at The HR Booth.

This week Alistair answers the question does an employee have statutory right to be accompanied during a redundancy consultation.

Question

I believe that there is no statutory right for employees to be accompanied during a redundancy consultation process – is this correct?

Answer

The law on the right to be accompanied is a grey area for redundancy, I'd always advise yes and here are the recommendations below which I got from CIPD:

The way in which the law governing the right to a companion applies to these meetings is set out below. However, the concise answer is that an employee does not have an absolute legal right to be accompanied to all of the redundancy consultation meetings, but that for many years the best advice for employers has been to allow the request for a companion for those employees who wish to be accompanied. This is especially the case at the formal meeting at which the employee is informed of their selection for redundancy. The relevant legal points to take into account are set out below:

  • There is a statutory right to be accompanied by a trade union official or a fellow worker, which arises under the Employment Relations Act 1999, Section 10.
  • This right to be accompanied applies to a ‘disciplinary or grievance’ hearing.
  • A 'disciplinary hearing' includes hearings that could result in a formal warning or a dismissal.
  • It is open to legal debate whether a hearing or meeting simply to inform an employee that they are to be dismissed by reason of redundancy, is a ‘disciplinary’ hearing within the meaning of Section 10. See for example Heathmill Multimedia ASP Ltd v Jones and Jones [2003] IRLR 856 EAT which decided that the right to be accompanied did not apply to a redundancy meeting (although for technical reasons this decision was outside the Employment Appeal Tribunal's powers).

The combined effect of the above points is that there are potential legal arguments about when the right to be accompanied applies in a pure redundancy context. An employer who wishes to comply with only the bare minimum necessary may argue that the right to be accompanied does not apply to redundancies at all. However, this is an unattractive argument and the safest option is to allow employees to be accompanied at the formal meeting at which they are informed of their redundancy; it is also fair to allow any requests for a companion at the earlier meetings where the employee is told they are at risk of redundancy

Hope that makes sense but I think we should give them the right to be accompanied - I see no value or benefit in not giving them this right.  If you need to clarify this, please get in touch.

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