The statutory right to be accompanied is contained within Section 10 of the Employment Relations Act 1999.
Although often treated as an administrative entitlement, Parliament intended it to be a meaningful procedural safeguard. The legislation recognises that disciplinary and grievance hearings are rarely conducted between parties of equal knowledge, experience or confidence. Employers typically enter such hearings supported by managers, HR professionals and established procedures. Employees, by contrast, frequently face allegations that may jeopardise their employment, reputation and financial security.
Section 10 therefore provides workers with the right to be accompanied at disciplinary and grievance hearings by:
- a certified trade union official;
- an accredited trade union representative; or
- a fellow worker.
Importantly, Parliament did not envisage that companion merely occupying a chair.
Section 10(2C) provides that the companion may:
- address the hearing;
- put the worker’s case;
- sum up the worker’s case; and
- respond on the worker’s behalf to any views expressed during the hearing.
The legislation also provides that the companion may confer privately with the worker during the hearing.
However, Parliament drew one important distinction.
The companion may not answer questions that are put directly to the worker, nor prevent the employer from explaining its case or another participant from contributing.
This distinction is critical.
It means there is a clear legal difference between:
“The representative cannot answer factual questions that are directed to the employee.”
and
“The representative is not allowed to speak during the hearing.”
The former accurately reflects the statutory limitation.
The latter is plainly inconsistent with the rights Parliament intended to confer.
This is not simply a matter of semantics. It goes directly to the effectiveness of workplace representation.
Parliament’s Purpose
Understanding why Section 10 exists is just as important as understanding what it says.
Employment relationships are characterised by an inherent imbalance of power. Employers possess institutional knowledge, legal advice, HR support and decision-making authority. Employees often attend hearings under considerable stress, sometimes with little understanding of disciplinary procedures or the consequences they face.
Parliament introduced Section 10 to reduce—not eliminate—that imbalance.
It is therefore difficult to reconcile legislation designed to facilitate effective representation with organisational practices that begin by instructing representatives not to speak.
The Acas Code of Practice: More Than Good Advice
The Acas Code of Practice on Disciplinary and Grievance Procedures occupies a unique position within employment law.
Although it is not legislation, Employment Tribunals are required to take the Code into account when determining relevant cases. Moreover, where either party unreasonably fails to comply with the Code, tribunals may adjust compensation by up to 25%.
The Code is founded upon several enduring principles:
- fairness;
- transparency;
- consistency;
- timely communication;
- the opportunity for employees to state their case; and
- the right to be accompanied.
The Code explains that workers should be allowed to explain their case, answer allegations, present evidence and challenge information relied upon by the employer.
The statutory right to accompaniment complements those principles.
Indeed, it is difficult to envisage how an employee can fully exercise the opportunity to present their case if their chosen representative is inaccurately informed that they must remain silent throughout the proceedings.
The ethical point follows naturally.
Employers should not seek the minimum level of legal compliance.
They should seek to embody the principles of fairness that underpin both the legislation and the Code.
The Companion’s Role: Clarified by the Courts
The scope of accompaniment has been considered by the courts.
Perhaps the most significant authority is Toal & Hughes v GB Oils Ltd [2013] EWCA Civ 1707.
In that case, the Court of Appeal confirmed that where an employee chooses a companion who satisfies the statutory criteria, the employer has no discretion to reject that choice simply because it prefers someone else.
The Court emphasised that the statutory right belongs to the employee—not to the employer.
The wider significance of Toal extends beyond the particular facts.
It demonstrates a judicial willingness to interpret Section 10 purposively, recognising that accompaniment is an important procedural protection rather than a technical formality.
Employers should therefore be cautious about adopting practices that narrow the practical effect of those rights.
If Parliament intended representation to be meaningful, employers should avoid procedural rules that render it largely symbolic.
Procedural Fairness in Unfair Dismissal Law
Although Section 10 specifically governs accompaniment, the wider law of unfair dismissal reinforces the importance of fair procedures.
In Polkey v A E Dayton Services Ltd [1987] UKHL 8, the House of Lords established a principle that continues to shape disciplinary practice today.
An employer may possess strong substantive grounds for dismissal.
Nevertheless, dismissal may still be unfair if the procedure adopted falls below the standard of reasonableness required by law.
The decision confirms an important proposition:
The fairness of the outcome cannot be separated from the fairness of the process.
This has profound implications.
If procedural safeguards—including meaningful representation—are undermined, the employer may expose itself to legal challenge regardless of the underlying misconduct.
Natural Justice and the Appearance of Impartiality
The concept of procedural fairness extends well beyond employment legislation.
It is rooted in the common law principles of natural justice.
Two principles are particularly relevant.
First, every individual should have a fair opportunity to present their case.
Secondly, no person should determine a matter where there is a real possibility of bias.
These principles explain why employees frequently question disciplinary arrangements where the Chair also presents the management case.
The issue is not necessarily one of actual bias.
Rather, it concerns confidence.
Would an informed observer conclude that the process appeared impartial?
Justice, as the courts have repeatedly observed, must not only be done—it must be seen to be done.
The same principle should inform workplace disciplinary hearings.
Ethical HR: Beyond Legal Compliance
Legal compliance represents the minimum expected standard.
Professional ethics demand more.
The Chartered Institute of Personnel and Development (CIPD) consistently promotes values including integrity, professional competence and evidence-based practice.
Those values sit comfortably alongside the Acas Code.
They also require HR professionals to challenge organisational practices that inaccurately describe legal rights.
Where hearing scripts contain incorrect statements regarding statutory representation, ethical HR should review and amend them.
Doing so protects not merely employees but the organisation itself.
Fair procedures build confidence.
Confidence reduces conflict.
Conflict reduction ultimately lowers organisational risk.
Procedural integrity is therefore not the enemy of effective management.
It is one of its greatest strengths.
Practical Implications for Employers
Every organisation should periodically ask itself five simple questions:
- Does our disciplinary script accurately reflect Section 10 of the Employment Relations Act 1999?
- Are our disciplinary Chairs trained in the statutory role of workplace companions?
- Do our procedures encourage meaningful participation rather than passive observation?
- Are investigative, presenting and decision-making functions separated wherever practicable?
- Would an Employment Tribunal conclude that our procedures embody both the letter and the spirit of the Acas Code?
If any answer gives pause for thought, there is an opportunity to improve.
A Final Reflection
The incident that prompted this article was not remarkable because it involved disagreement.
Representatives challenge procedures every day.
What made it remarkable was the confidence with which an inaccurate statement concerning statutory rights was presented as routine.
That should concern every employer.
Not because every hearing will result in litigation.
But because organisational culture is shaped by the practices employees experience repeatedly.
The statutory right to accompaniment exists because Parliament recognised that fairness requires more than allowing someone to occupy the seat beside an employee.
It requires meaningful participation.
The Acas Code reinforces that principle.
The courts have interpreted those protections purposively.
Professional ethics demand that organisations respect them.
Ultimately, the question is not whether representatives should speak.
The legislation has already answered that.
The real question is whether employers wish to be known for merely complying with employment law—or for genuinely embracing the principles of procedural justice upon which that law is founded.
This article should be read alongside the blog ‘When Did HR decide that workplace representatives should be seen but not heard.’
About the Author
Shakil Dixon is the Founder and Principal Representative at Zhan Associates, specialising in workplace advocacy, disciplinary representation, appeals and strategic defence for employees facing significant employment disputes. With more than three decades of experience in workplace representation, public service and organisational governance, he advises clients on achieving procedurally fair outcomes while ensuring employers remain accountable to both the law and the principles of natural justice.