ACAS makes changes to Code on Disciplinary and Grievance procedures regarding the right to be accompanied. What does this mean for employers?

ACAS has published a revised version of its Code of Practice on Disciplinary and Grievance Procedures regarding the right to be accompanied (here). This followed a consultation stemming from an Employment Appeal Tribunal (“EAT”) decision in Toal and Another v GV Oils Ltd regarding this right. The revised version of the Code is now before Parliament and is expected to be in force early March 2015.

What is the issue?

The Employment Relations Act 1999 provides that a worker who is required or invited to attend a disciplinary or grievance hearing can reasonably request to be accompanied at that hearing. If the worker makes such a request, his or her employer must permit the worker to be accompanied by their chosen companion provided that companion is a trade union official, a certified trade union representative or another of the employer’s workers.

The issue was whether “reasonably” referred to the right to request to be accompanied or to the choice of companion. The ACAS Code suggested the latter indicating that a request would not be reasonable where the companion “would prejudice the hearing” or was “from a remote geographical location if someone suitable and willing is available on the site”. However, the EAT held otherwise. Once a reasonable request had been made, the worker had an absolute right to his or her choice of companion provided that companion fell within the categories referred to above.

What does the ACAS Code now state?

The revised ACAS Code now provides as follows:

• To exercise the statutory right to be accompanied, workers must make a reasonable request.
• What is reasonable will depend on the circumstances of each case. A request does not have to be in writing or within a certain time frame, although a worker should provide enough time for the employer to deal with the companion’s attendance at the meeting.
• The statutory right is to be accompanied by a fellow worker, a trade union representative or an official employed by a trade union. Employers must agree to a worker’s request to be accompanied by any companion from one of these categories.

What does this mean in practice?

• An employer cannot lawfully refuse a companion who falls within the statutory categories permitted even though there may be concerns that the presence of that companion may prejudice the hearing or it is geographically inconvenient to accommodate them.
• However, where an employer does have real concerns it may be sensible to weigh these up against the legal and practical impact of rejecting the employee’s chosen companion and asking them to identify an alternative. Legally, the compensation for breach of this right is small (indeed, in Toal the EAT suggested that the sum of compensation should be in the region of £2 because no loss or detriment had been suffered). Further, whilst the current ET fee regime is still in place, a worker would need to pay up to £1,200 in order to bring their claim and have it heard (albeit this would be recovered were they successful).
• It is the employee relations impact which may be more significant of rejecting a chosen companion but a rationale and well-reasoned explanation to an employee may provide a constructive solution. Indeed, the revised ACAS Code provides assistance in this respect by expressly stating: “As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements. For instance, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location”.
• It remains at the discretion of an employer whether to permit a companion to attend a meeting which is not a “disciplinary” or “grievance” hearing or to permit someone who is not in one of the statutory categories such as a spouse or carer. Whether permitting a companion from outside the statutory regime is helpful will depend on the circumstances but should be given serious consideration where perhaps a worker needs assistance due to a disability or English is not their first language.

Please do not hesitate to contact your usual OC Contact for any further information regarding these changes.