Acas has launched a consultation on a revision to the Code of Practice on Disciplinary and Grievance Procedures to reflect the Employment Appeal Tribunal’s recent decision in Toal and anor v GB Oils. The EAT suggested that the Code did not accurately reflect the law on the right to be accompanied in disciplinary and grievance hearings and in particular the law relating to the need to make a reasonable request.
The Employment Relations Act 1999 states that workers have a right to be accompanied at a disciplinary or grievance hearing where they are invited to such a hearing and make a reasonable request. What constitutes a ‘reasonable request’ is not defined in the Act but Acas states in its Code of Practice that it would not normally be reasonable for a worker to insist on being accompanied by a companion who would have to come from a remote geographical location, if someone suitable and willing was available on site, or whose presence would prejudice the hearing. However, in Toal, the EAT stated that if a worker has been invited to a disciplinary or grievance hearing then, provided that he or she has made a reasonable request to be accompanied at the hearing, he or she has the right to choose whoever he or she likes as a companion – so long as the companion is from one of the categories set out in the Act.
This decision of the EAT does not seem business friendly since, if it were followed, it could cause disruption to the operation of the business and delays to the hearing itself.
The changes to the Code proposed by Acas make clear that workers have a right to choose whoever they like as a companion, so long as they come from one of the defined categories of companion. However, it retains the ‘good practice point’ that workers should have some regard to the effect that their choice of companion will have on the disciplinary or grievance process itself. Acas feels that this is important to discourage requests for accompaniment that may disrupt the process and may not actually be in the worker’s own best interests.