Guide · Section 10 ERA 1999
The right to be accompanied at a hearing
One line in a letter, easily missed, and the most useful right you have in the entire process. This guide sets out exactly who you can bring, what they are permitted to do once they are in the room, what happens when the date does not work, and the limits nobody explains until you are already sitting down.
At a glance
What a companion can and cannot do
Section 10 of the Employment Relations Act 1999 gives workers the right to be accompanied at certain disciplinary and grievance hearings. It is a statutory right, which means it does not depend on your employer’s goodwill, their policy, or whether they think a representative is warranted. Where the meeting qualifies and the request is reasonable, the employer must agree.
It is also the right that decides the character of the meeting. A hearing where you sit alone opposite a manager and an HR adviser is a very different event from one where somebody beside you has read the bundle, knows the Code, and is entitled to put and sum up your case. The room does not change. The balance in it does.
Zhan Associates is a specialist workplace defence consultancy. We are not a firm of solicitors and we do not provide reserved legal activities or legal advice. We attend as your chosen companion under Section 10, and we issue a formal Notice of Representation to your employer before the hearing setting out the statutory framework and our role.
Right To Be Accompanied
When the right applies
The right attaches to the meeting, not to the person. It applies to a disciplinary meeting that could result in a formal warning being issued, or the taking of some other disciplinary action, or the confirmation of a warning or other disciplinary action, which is what brings appeal hearings within it. On the grievance side it applies where the meeting deals with a complaint about a duty owed by the employer to the worker, for example that the employer is not honouring your contract or is in breach of legislation.
The gap most people fall into is the investigation. There is no statutory right to be accompanied at a formal investigatory meeting, although an employer’s own procedure may allow it, and many do. That is worth checking before the meeting rather than discovering at the door, because the account you give at investigation stage is the account you will be held to later.
| Meeting | Statutory right? | Note |
|---|---|---|
| Formal investigatory meeting | No | Check the employer’s policy, which may allow it. Ask, and record the answer in writing. |
| Disciplinary hearing | Yes | Where it could result in a formal warning or other disciplinary action. |
| Disciplinary appeal hearing | Yes | It confirms a warning or other disciplinary action, so the right applies. |
| Grievance meeting | Usually | Where the complaint concerns a duty owed by the employer to you, such as a contractual or statutory breach. |
| Grievance appeal hearing | Yes | Workers have the right to be accompanied at any such appeal hearing. |
| Capability or performance hearing | Usually | Where run under a separate capability procedure, the Code says the basic principles of fairness still apply, adapted as needed. |
Right To Be Accompanied
Making the request, and the five working day rule
To exercise the right you must make a reasonable request. What is reasonable depends on the circumstances, and the Code is clear that the request does not have to be in writing or within a particular timeframe. It does have to give the employer enough time to deal with your companion attending, and it should be clearly understood, which in practice means naming your companion in advance where you can and saying which of the three categories they fall into.
Then there is the postponement rule, which is the most practically valuable part of Section 10 and the part employers most often resist. If your chosen companion is not available at the time proposed, the employer must postpone the hearing to a time you propose, provided that alternative is both reasonable and not more than five working days after the date originally proposed. Note where the limit sits. Beyond five working days the statutory right is exhausted, and any further postponement becomes a matter of agreement rather than entitlement.
A hearing is proposed for Tuesday 6th. Your companion cannot attend. You propose Monday 12th, which is four working days after the original date, and you propose it as soon as you receive the invitation.
The position. That is within the five working day window and, on the face of it, reasonable. The employer must postpone. If instead you propose Thursday 22nd, you are outside the statutory window and you are asking rather than requiring, which is a materially weaker position. Propose the earliest workable date inside the window rather than the most convenient date outside it.
How Zhan Associates exercises the right for you
The right belongs to you. We exercise it on your behalf as your chosen companion, which is the foundation of a standing that does not depend on the employer’s permission. A formal Notice of Representation goes to your employer before every hearing instruction, setting out the statutory framework and the role, so that the question is settled in correspondence rather than in the doorway.
Section 10 recognises three categories of companion: a fellow worker, an official employed by a trade union, and a trade union representative certified by their union as competent to accompany a worker. Shakil Dixon falls into the third. He is a trade union representative accredited by Unite the Union as competent to accompany a worker, and that accreditation is the basis on which he attends your hearing.
- An accredited companion. A trade union representative accredited by Unite the Union as competent to accompany a worker, which is one of the three categories Section 10 specifies.
- In-room advocacy under Section 10. Hearing representation at disciplinary, grievance and appeal hearings across England and Wales.
- Notice of Representation. Issued as standard on every hearing instruction, not on request.
- Postponement handled formally. Requests made under the statutory mechanism, within the five working day window, with the basis stated.
- Independent of your employer. We are not HR, not employer-aligned, and not constrained by union qualifying periods.
Sources: Employment Relations Act 1999, section 10, including subsections (4) and (5) on postponement. ACAS Code of Practice on disciplinary and grievance procedures, in force 11 March 2015, paragraphs 7, 13 to 17, 28, 35 to 39 and 44.
Common questions
Questions about being accompanied
It applies where a disciplinary meeting could result in a formal warning, some other disciplinary action, or the confirmation of either, which covers appeal hearings. It also applies at a grievance meeting that concerns a duty owed by your employer to you, for example that they are not honouring your contract or are in breach of legislation.
The statutory categories are a fellow worker, a trade union representative, or an official employed by a trade union. A union representative who is not an employed official must have been certified by their union as competent to accompany a worker. Where your request falls within those categories, your employer must agree to it.
No. The right applies to workers regardless of union membership and there is no qualifying period. This is the point most people get wrong, and it is the reason a great many of the people we act for are not unionised, or joined too recently for their union to help.
It has to be a reasonable request, but it does not have to be in writing and there is no set time frame. Give your employer enough time to deal with your companion attending, and make it clearly understood: name the companion in advance where you can and say which category they fall into. Doing it in writing is not required but it is sensible.
They may address the hearing to put your case and sum it up, respond on your behalf to views expressed at the meeting, and confer with you during the hearing. That is a substantial role, and used properly it changes the character of the meeting entirely.
They cannot answer questions put directly to you, address the hearing if you do not want them to, or prevent your employer from explaining their case. Questions put to you are answered by you, which is why preparation matters as much as representation.
If your chosen companion is not available at the time proposed, your employer must postpone to a time you propose, provided it is reasonable and not more than five working days after the date originally proposed. Note the limit: beyond five working days the statutory right is exhausted, and any further postponement is a matter of agreement.
Not where the companion falls within the statutory categories and the request is reasonable. You can also change your choice of companion if you wish. As a matter of good practice you should bear in mind the practicalities, for instance choosing someone suitable, willing and available rather than someone geographically remote.
The third. Shakil Dixon is a trade union representative accredited by Unite the Union as competent to accompany a worker, which is one of the three categories Section 10 specifies. That accreditation is what gives the practice standing to attend, and it is published rather than merely asserted so it can be checked before the hearing rather than argued at the door. It is personal to him: Zhan Associates is an independent practice and not part of Unite, this is not union representation, and you do not need to be a union member to instruct us.
A solicitor acting as a solicitor sits outside the three statutory categories and can be refused. Some employers agree to legal representation, particularly where the outcome could end a professional career, but agreement is required. Representation under Section 10 does not depend on the employer's permission in the same way, which is the practical difference.
There is no statutory right to be accompanied at a formal investigatory meeting, although an employer's own procedure may allow it. Check the policy, ask, and record the answer.
Record the request and the refusal in writing at the time. Denial of the statutory right is a discrete matter with its own remedy, separate from any challenge to the outcome, and it is very difficult for an employer to explain away once it is documented.
See how the right works in practice at a disciplinary hearing and at an appeal.
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