Prison Officer Right to Be Accompanied at Hearings

In shortBeing accompanied is three different rules: statutory at hearings and appeals, policy-based at investigation interviews, and a solicitor's right at police interviews under caution.

Being accompanied helps the process run well: it makes sure you understand what is said and have support in saying what you want to say. It is not one single right: in a prison discipline case you will meet at least three settings, and the rule differs in each.

This guide is about England and Wales (HMPPS), with comparisons for Scotland and Northern Ireland. We rely on the legislation, the Acas Code, the GOV.UK guidance, a third-party copy of the 2013 re-issue of PSI 06/2010 (partial) and two published tribunal judgments.

The current internal policy may differ, and it is being rewritten, so check the wording in your own invitation letter and ask HR for the policy in force. Nothing here is legal advice, and nothing should be read as encouragement to obstruct or delay a fair process.

Disciplinary or grievance hearing, and appeal hearing

A statutory right under section 10 of the Employment Relations Act 1999, which the Acas Code summarises.

Investigation interview

The HMPPS policy itself gives you the opportunity to bring a trade union representative or work colleague.

Police interview under caution

A different regime applies and the right is to a solicitor, which is outside this guide.

In shortUnder section 10 you may choose a fellow worker, a trade union representative or a certified union official; in practice usually a POA branch representative or a trusted colleague.

Section 10 of the Employment Relations Act 1999 applies where a worker is required or invited by their employer to attend a disciplinary or grievance hearing and reasonably requests to be accompanied. The companion must be chosen by the worker and must be one of three kinds of person:

In practice, for a prison officer, the usual companions are a POA branch representative or a colleague you trust. A colleague has to be another worker of the same employer, and it is sensible to choose someone who is not a likely witness and who can keep the matter confidential.

Acas Code

Paragraph 14 describes the entitlement to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union; paragraph 15 says the worker must make a reasonable request; paragraph 28 adds that workers have a statutory right to be accompanied at appeal hearings.

GOV.UK disciplinary guidance

Gives the same three categories and says a family member, or a Citizens Advice worker, can attend only if the employer agrees or your contract says so.

• A trade union official employed by the union.
• A union official the union has certified in writing as having experience of, or having received training in, acting as a worker's companion.
• Another of the employer's workers.

In shortAt an investigation interview, HMPPS policy (2013 copy, para 4.20) gives at least 48 hours' written notice and the chance to bring a union representative or work colleague; ask HR for the current wording.

The statutory right is aimed at hearings, and an investigation interview is a different thing. But the published part of the HMPPS Conduct and Discipline policy deals with it directly. The 2013 copy is partial and pre-dates later revisions, so ask HR for the current wording.

Before an interview, a line manager may meet you simply to establish the nature of an incident. The policy says the manager must tell you it is not a disciplinary meeting and must stop if it becomes clear a disciplinary investigation is needed.

Notice and rights (para 4.20)

An interviewee must receive at least 48 hours' written notice, must be told that the interview is part of a disciplinary investigation and that information may be used in proceedings, and must be told they may be accompanied by a trade union representative or work colleague and given reasonable time to arrange it.

Typed note (para 4.21)

A typed note of the interview must be given to you and your comments recorded in the report.

Co-operation (paras 4.22 to 4.24)

You must give all reasonable co-operation, you cannot be forced to answer but must be reminded that reasonable conclusions may be drawn if you refuse after proper warnings, and you need not answer a question if the answer might incriminate you.

Written answers (para 4.25)

You may ask to give written answers, which the investigating officer decides is reasonable, normally within five working days.

Union representatives (para 4.8)

If you are a union representative yourself, the senior union representative or a full-time official is told of the terms of reference and the outcome.

In shortA companion may address the hearing, put and sum up your case and confer with you, but cannot answer questions on your behalf.

Section 10 and Acas paragraph 17 are specific. In practice that means you answer the decision-maker's questions yourself, with your companion helping you prepare, asking for breaks, putting points and questions where the process allows, and summing up.

The Moorland judgment gives a flavour of how hearings are run, set out below. In Belmarsh, the hearings were recorded, transcripts were available, the investigator presented the case, the use of force expert and witnesses gave evidence, and each officer questioned witnesses and gave evidence with a union representative present.

In shortIf your companion is unavailable, you can propose a reasonable alternative time within five working days of the original date and the employer must postpone.

The right would mean little if the employer could set a date that your companion cannot make.

Section 10 therefore provides that, if the companion you have chosen will not be available at the time proposed, you can propose another time that is reasonable and falls before the end of the period of five working days after the date originally proposed, and the employer must postpone.

The Acas Code, at paragraph 16, says the same: the employer must postpone the hearing to a time proposed by the worker, provided the alternative time is both reasonable and not more than five working days after the date originally proposed.

The right to postpone is not a licence to delay indefinitely. Acas also says that if a worker persistently fails to attend a meeting without good cause, the employer may decide on the evidence available.

• If your companion's availability genuinely makes the first date impossible, propose a specific new date promptly and in writing.
• If you need a different companion, say so.

In shortAsk in good time, in writing, naming your companion and the meeting; a family member or adviser is a different request that the employer decides.

The Acas Code requires a 'reasonable request'. That means you should ask in good time, name your companion if you can and say which meeting you mean.

Many invitation letters already tell you that you may be accompanied, as in the Moorland judgment where the hearing invitation explained what the officer could do and the outcome letter was given in writing. If yours does not, ask HR in writing.

Reasonableness works both ways. An employer is not required to accept a companion who is a witness or who has a conflict of interest that would compromise the process, and a worker should not choose someone simply to obstruct.

Asking for a family member, a friend or a legal adviser to attend is a different request from the statutory right, and it is for the employer to agree.

In shortThe process can adjust for stress and health needs, such as a break, an extra supporter or more time, if you ask in writing with supporting evidence.

A disciplinary investigation is stressful, and officers sometimes tell their managers things they would not otherwise share. The Moorland case shows what happened in practice:

The lesson is not that medical evidence will change the result. It is that the process can and does adjust, for example by allowing a break, an extra supporter, a different room or additional time, if you ask in writing with supporting evidence. You can ask your employer for similar adjustments in internal meetings.

Our guide to sickness absence management explains how health and attendance interact with discipline.

• An Occupational Health assessment during the process recorded severe anxiety and depression symptoms, recommended that investigations be completed within a reasonable timeframe and that the officer be kept up to date, and recommended stress risk assessment and regular contact.
• The care team attended meetings and supported the officer during the hearing.
• The decision-maker considered the mitigation, but concluded it did not explain the behaviour.
• The tribunal itself, in both published cases, adjusted for an ADHD diagnosis and dyslexia, including extra breaks and extra reading time, by reference to the Equal Treatment Bench Book.

In shortPolice interviews, Ombudsman interviews and exclusion meetings follow different rules, and no published statement says who may accompany you at an exclusion meeting.

Police interview under caution

The right is to legal advice from a solicitor, and the POA's handbook says its scheme assists where you are interviewed under caution on a work-related matter. See interview under caution and POA representation.

Prisons and Probation Ombudsman or independent complaint investigation

HMPPS's Prisoner Complaints Policy Framework records that staff may be accompanied by a colleague or trade union representative, and that evidence they give is not admissible in disciplinary proceedings without their consent but can be disclosed to courts where the law requires. Check the current text with your representative.

Exclusion from working for HMPPS

The framework says the decision-maker meets the person before deciding on exclusion, but we could not find a published statement of who may accompany you at that meeting. The framework also says the decision can be made in your absence.

In shortBoth devolved codes give a union representative or colleague at all stages, with no right to a legal representative in Northern Ireland; both carry old review dates.

Both codes carry old review dates, and their current status is not confirmed, so check with SPS or NIPS HR. Statutory rights under the Employment Relations Act 1999 apply across Great Britain, and Northern Ireland has its own equivalent legislation that we have not reviewed.

In shortUse this list for every investigation interview, hearing or appeal: it protects your position and does not depend on the outcome.

1. Read the letter. Does it say what kind of meeting it is, when, where, and who will be there? Does it say you may be accompanied and what the possible outcomes are?
2. Contact your representative or choose a colleague. Confirm they can attend and have no conflict.
3. If the date does not work, propose a specific alternative within five working days of the original date, in writing.
4. Ask for the evidence you have not seen, and for the policy version in force. In both published cases the invitation enclosed the investigation report and told the officer dismissal was possible.
5. Ask in writing for adjustments if you need them, with medical evidence, and tell your companion.
6. Prepare with your companion: your account, the points you want to make, any witnesses you want to call and the questions you want to put.
7. On the day, take notes. Afterwards, check the typed record promptly and send comments in writing.
8. If you disagree with the outcome, diarise the appeal deadline from your letter (see appealing a disciplinary outcome).