The rights of a worker to be accompanied by a companion of their choice, to either a disciplinary or a grievance meeting, has been clarified in the publication of an updated ACAS code of practice. This revised code reflects the decision in the case of Toal and another v GB Oils Ltd where aggrieved employee’s successfully brought a claim against their employer after being refused their choice of companion. The employer believed their request was unreasonable and that the individual selected would prejudice the meeting. It relied on the, then ACAS code which stated “however it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing….”
The Employment Appeal Tribunal did not agree with the employer’s view, stating that Parliament had clearly intended the worker to have free choice. It also decided that because the legislation was unambiguous there was no need for the employer to turn to the ACAS guide for interpretation, which they added, in any event had no authority on this occasion to interpret this entitlement – that was a matter for the courts.
The ACAS code of practice is a very useful source of guidance and to be fair, it was accepted good practice previously that only reasonable requests be permitted. The new ACAS code explains:
• The employer must agree to the workers request and choice of companion provided that they are from one of the three categories given in the legislation.
• A worker can change their companion if they wish.
• The workers request does not have to be in writing.
• The workers request should be made in sufficient time so that arrangements can be made for their chosen companion to attend. It should include sufficient detail so that the companion can be identified.
However there are some concerns that the ACAS code has not gone far enough. In the Toal case the Employment Tribunal made it clear that:
1. The worker has an absolute right to choose their companion, provided they fell into one the categories listed.
2. The worker has a right to change their choice of companion as many times as they wish.
3. There is a concern that it is not sufficiently clear that the new paragraphs offer guidance only on the workers rights.
4. The wording is such that the employer may misinterpret the workers absolute right as being one that they can refuse if they feel that the workers request is not ‘reasonable’.
Employers do not have to worry too much about a glut of cases; tribunal fees not withstanding, in this case the Employment Appeal Tribunal did not agree with the employees request for two weeks pay and suggested instead that a nominal sum, akin to forty shillings – a prize worth two pounds in today’s money – was more appropriate. It has been sent back for the tribunal to decide.
Section 10 of the Employment Relations Act 1999 states:
(1)This section applies where a worker—
(a)is required or invited by his employer to attend a disciplinary or grievance hearing, and
(b)reasonably requests to be accompanied at the hearing.
(2)Where this section applies the employer must permit the worker to be accompanied at the hearing by a single companion who—
(a)is chosen by the worker and is within subsection (3),
(b)is to be permitted to address the hearing (but not to answer questions on behalf of the worker), and
(c)is to be permitted to confer with the worker during the hearing.
(3)A person is within this subsection if he is—
(a)employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992,
(b)an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings, or
(c)another of the employer’s workers.
(a)a worker has a right under this section to be accompanied at a hearing,
(b)his chosen companion will not be available at the time proposed for the hearing by the employer, and
(c)the worker proposes an alternative time which satisfies subsection (5),
the employer must postpone the hearing to the time proposed by the worker.
(5)An alternative time must—
(a)be reasonable, and
(b)fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer.
(6)An employer shall permit a worker to take time off during working hours for the purpose of accompanying another of the employer’s workers in accordance with a request under subsection (1)(b).
Reproduced under the Open Government Licence.
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