London Underground Ltd v Ferenc-Batchelor
Harding v London Underground Ltd [2003] IRLR 252
The rights to accompaniment at disciplinary and grievance hearings were introduced in the Employment Relations Act 1999, section 10. They were heralded as an important milestone in individual representation rights and a good way in for trade unions in non-recognised workplaces: a way to build recognition campaigns and demonstrate the value of union membership to an uninitiated workforce. Many younger workers in particular may not have had the benefit of working for a unionised employer.
The first cases to test the scope of the accompaniment rights to go to appeal have been in the unionised workplace of London Underground which could either demonstrate the importance of the new rights, freestanding of recognition rights, or the difficulty of asserting the right to accompaniment without the assistance of a recognised union.
Either way, the cases of Ms Ferenc-Batchelor and that of Mr Harding, establish an extremely important principle that will hold good in all accompaniment cases. The right established by Section 10 is engaged when a disciplinary hearing could result in one of three things - the administration of a formal warning to a worker by his employer; the taking of some other action in respect of a worker by his employer; or the confirmation of a warning issued or some other action taken.
Disciplinary record
What exactly is a formal warning and what is "some other action"? In this case the hearing at which representation was denied could result in what was described as an "informal oral warning" in the procedure. In fact it was confirmed in writing and continued to have effect for up to 12 months. It was entered on the employee's disciplinary record and would be taken into account in the event of a similar offence during the12 month period when the warning was still live.
In Ms Ferenc-Batchelor's case the tribunal found that this was in effect a formal warning, no matter what it had been described as, and so she had a right to a companion and that right had been breached. In Mr Harding's case an employment tribunal reached the opposite conclusion.
The Employment Appeal Tribunal has upheld the decision in Ms Ferenc-Batchelor's case and overturned the decision in Mr Harding's case. A disciplinary warning becomes a formal warning, no matter how it is described, if it becomes part of the employee's disciplinary record. Making the warning part and parcel of an individual employee's disciplinary record is wholly different from management recording of a daily log or ordinary reports. Attaching a formal time scale for the duration of the warning gives a degree of formality to what is intended to be an informal remedy. So too does the confirmation of a warning in writing and including it as part of a disciplinary record and taking it into account in the case of a repetition of a similar offence during the currency of the warning.
So far so good, but a finding by the tribunal in the Ferenc-Batchelor case that the imposition of training, counselling or coaching requirements came within the definition of
"some other action" thereby meaning that a hearing which could result in such measures attracted accompaniment rights was not upheld by the EAT. Training, counselling or coaching do not contain any element of penalty or punishment and so do not amount to a disciplinary sanction and therefore fall outside the scope of the representational rights.