The right of LLP members, as workers, to be accompanied to disciplinary and grievance hearings
Following the decision in Clyde & Co LLP -v- Bates van Winkelhof (see our previous alerts on the topic here), we continue to look at the implications of the Supreme Court’s decision for LLP members and their firms. This week we look at the new right for LLP members to be accompanied by a fellow “worker” to a disciplinary or grievance hearing held by their firm.
The Employment Relations Act 1999 (“ERelA”) sets out the right of employees and workers to be accompanied to a disciplinary or grievance hearing if they reasonably request. Following the Supreme Court’s decision, LLP members are now regarded as “workers” and therefore can make use of this right.
What counts as a disciplinary or grievance hearing involving an LLP member?
A grievance hearing is a hearing which concerns the performance of a duty by the firm in relation to the LLP member.
A disciplinary hearing is a hearing which could result in:
- the administration of a formal warning to an LLP member by their firm;
- the taking of some other action in respect of the LLP member by their firm (which is likely to mean disciplinary action rather than just any action); or
- the confirmation of a warning issued or some other action taken.
What about investigatory meetings held with LLP members?
A meeting held with an LLP member to investigate allegations does not fall within the definition of a “disciplinary hearing” as set out in the ERelA – the rationale being that such investigation meeting itself should not result in disciplinary action. However, if during the course of an investigatory meeting with an LLP member it looks likely that disciplinary action may be taken, a separate disciplinary meeting should be arranged so that the LLP member can be accompanied. Firms should not allow an investigatory meeting to evolve into a disciplinary meeting.
What is the extent of the right of accompaniment?
Section 10(3) of the ERelA sets out the categories of individuals who can accompany an LLP member to a disciplinary or grievance hearing. For an LLP member, the most appropriate companion is likely to fall within the category of “another of the employer’s workers” and in practice, an LLP member is likely to choose a peer i.e. a fellow LLP member to accompany them. However, they may decide to be accompanied by someone less senior in the firm (if they are happy to agree), perhaps choosing to do so for tactical or strategic reasons.
The ERelA also permits the LLP’s companion to be a trade union official (as defined in the legislation). Professional practices are rarely unionised so, in practice, a union companion is unlikely to be chosen.
What is a reasonable request to be accompanied?
Guidance about what constitutes a reasonable request is set out in the ACAS Code of Practice – Disciplinary & Grievance Procedures (“the Code”). Whilst the Code is aimed at employers and their employees, it refers to “workers” when considering who can be a companion to a disciplinary meeting. For example, the Code suggests that it would not be reasonable for a worker to make a request for a companion whose presence would prejudice the hearing or a companion from a remote geographical location if someone suitable and willing was available on site.
However, the 2013 Employment Appeal Tribunal case of Toal & another –v- GB Oils Ltd confirmed that workers have an absolute right to choose their companion subject only to the defined limitations imposed by section 10(3) of the ERelA referred to above (i.e. that the companion be an appropriate union representative or one of the employer’s other workers). No other limitations, including those set out in the ACAS Guide, are relevant. Following this decision, the Code will be amended (the consultation on it closed earlier this year).
What is the role of the LLP member’s companion at the meeting?
The LLP member’s companion will be permitted to address any disciplinary or grievance hearing held by the firm (but is not able to answer questions on behalf of the LLP member). The companion is also permitted to confer with the LLP member during the hearing.
If the LLP member’s companion is not available to attend the hearing time proposed by the firm, the LLP member can propose an alternative time which is reasonable and falls within 5 days of the original hearing date. If this occurs, the firm must postpone the hearing to the alternative time proposed.
Can an LLP member request legal representation or a different companion at a hearing?
The only companions allowed to accompany an LLP member are those set out in the ERelA (see above). There is no right for an LLP member as a worker to have qualified legal representation at a disciplinary meeting.
However, despite this, firms should consider whether exceptions should be made. For example, it might be an appropriate reasonable adjustment for a disabled LLP member to be accompanied by someone different to that set out in the legislation if they so request (this has previously been confirmed in case law, albeit relating to an employee).
In recent times, there have also been several European and UK cases (primarily involving public bodies involved in the education and medical sectors) on the right of an individual to legal representation at a disciplinary hearing. The arguments in these cases have primarily involved the Human Rights Act 1998 / Article 6 of the European Convention on Human Rights (the right to a fair trial). However, to engage Article 6 (and argue the right to legal representation) the bar is set very high. Very few disciplinary proceedings would engage Article 6 and it will only be engaged in cases where the outcome of the disciplinary proceedings would “substantially influence” the decision of another body in determining the claimant’s civil rights. In addition, Article 6 would not be directly enforceable against private professional practices, although the courts (as a public authority) are bound to “read and give effect” to UK legislation “in a way which is compatible with” Article 6.
Potential claims for LLP Member
If the firm fails to allow an LLP member to be accompanied or to permit a re-arranged meeting if the LLP member’s companion is unavailable, then the LLP member can present a claim to the Employment Tribunal. Typically any such claim has to be presented within 3 months of the date of the failure or threatened failure, subject to participation in ACAS early conciliation. If the LLP member is successful they can be awarded up to two weeks’ pay (to which the statutory cap, currently of £464 applies).
Following the case of Toal (mentioned above) the Employment Appeal Tribunal indicated that where an employer fails to allow a worker to be accompanied and the employee does not suffer any loss or detriment, very limited compensation should be payable in the region of £2!
An LLP member who successfully claims that they have been subjected to a detriment because they have exercised or sought to exercise the right of accompaniment or they have accompanied or sought to accompany another worker to a disciplinary or grievance hearing can be awarded such compensation as the tribunal considers just and equitable given the infringement and any loss attributable to the infringement.
Although the financial remedy for failing to allow accompaniment is limited, this new protection is likely to have a number of practical consequences:
- This new right – sitting alongside whistleblowing, part-time worker, unlawful deduction and working time protections, amongst others – is likely to be a further shift in the perception that the rights and status of LLP members are becoming more aligned to those of employees. This may have wider implications in other areas, such as a reassessment of the interpretation and enforceability of restrictive covenants and garden leave obligations of LLP members, where there is currently no specific case law.
- It also potentially opens management processes and decisions taken in relation to individual partners to wider scrutiny amongst the members as a result of an independent LLP member being involved in the process as companion to the partner who is subject to the disciplinary or grievance process.
- Whilst the right for an LLP member to be accompanied does not in itself impose on firms an obligation to operate formal disciplinary and grievance procedures, it is advisable for firms to put in place and follow such procedures now in the form of non-contractual policies (rather than in LLP agreements themselves). This should place firms in a stronger position to defend against allegations of unlawful discrimination, whistleblowing detriment and similar claims by LLP members by enabling the firm to document the objective business reasons for and consistent treatment in the firm’s actions towards the member.
- Consider implementing non-contractual disciplinary and grievance procedures for LLP members, which include a reference to the right to be accompanied and what this entails. Then follow and carefully document those processes in individual circumstances.
- Consider offering any member who is going through a disciplinary or grievance process some suggested names for a companion from amongst the LLP members, with whom senior management is comfortable would keep the process confidential and would offer sensible objective support to the member (whilst being aware that the firm will not be able to insist on that preferred choice of companion).
- Avoid allowing an investigation to turn into a disciplinary process – keep the two processes clear and separate as far as possible.
- Ensure the companion understands the importance of maintaining confidentiality in the disciplinary and grievance process.
- Ensure that no member is penalised in any way for exercising their right to be accompanied or for undertaking the role of companion in any disciplinary or grievance procedures.