A new ACAS Code of Practice on Disciplinary and Grievance Procedures (“the Code”) came into force on 11 March 2015, following the EAT’s recent decision in Toal and another v GB Oils Ltd . The revised Code makes it clear that the statutory requirement for any request by a worker to be accompanied to a disciplinary or grievance hearing to be “reasonable”, applies to the making of the request and not to the worker’s choice of companion.
In Toal and another, the EAT held that a worker has an absolute right to be accompanied by a companion of their choice, provided that the companion is a work colleague or trade union representative. Therefore the Code has been updated to reflect the position that an employee’s choice of companion is absolute and now states that “employers must agree to a worker’s request to be accompanied by any companion from one of these categories”.
The revised Code divides the issues of “who can accompany a worker” and “what is a reasonable request” into different paragraphs. This makes it clear that the requirement to be “reasonable” does not concern the worker’s choice of companion but in fact applies to the manner and approach of the request.
Whether a request is “reasonable” will depend on the circumstances of each individual case. However, a worker should provide enough time for the employer to deal with the companion’s attendance at the meeting. Workers should also consider how they make their request so that it is clearly understood, for instance by letting the employer know in advance the name of the companion where possible and whether they are a work colleague or trade union representative.
The Employer’s statutory obligation therefore is to permit employees to be accompanied by their choice of companion as long as the companion is a fellow worker or a trade union representative.
To accompany the new Code, ACAS has produced a new non-statutory guide, a copy of which can be accessed here: https://www.acas.org.uk/media/pdf/e/m/Discipline-and-grievances-Acas-guide3.pdf
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