The right to be accompanied... only this person please

The right to be accompanied... only this person please

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Author: Michael Briggs

ACAS has published an updated draft Code of Practice on Disciplinary and Grievance Procedures, which amends earlier guidance relating to a worker's right to be accompanied.

Background

Consultation on proposed amendments to ACAS' Code of Practice on Disciplinary and Grievance Procedures (the Code) closed on 7 January 2014. On 16 January 2015, ACAS published the results from that consultation, together with a final draft of the revised Code (the Draft Code).

The Employment Relations Act 1999 provides that where a worker is required, or invited, to attend a disciplinary or grievance hearing by his or her employer and the worker 'reasonably' requests to be accompanied at the hearing, an employer must permit the worker to be accompanied by a single companion who is chosen by the worker and is either:

  • an employed trade union official
  • an official of a trade union who is not employed by the union, but whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker's companion in disciplinary and grievance matters
  • a fellow worker

In Toal and another v GB Oils Ltd, the Employment Appeal Tribunal (EAT) considered whether an employee's choice of companion had to be a reasonable one. In that case, the Claimants had raised grievances with their employer and made it clear that they wished to be accompanied by a particular union official. The employer refused the request for a number of reasons, including the fact that the requested union official had been banned from site. The Claimants were accompanied by alternate union officials at both the grievance and grievance appeal hearings.

An employment tribunal concluded that the employer was not in breach of its obligations, holding that while the word 'reasonably' in the legislation did not extend to the worker's choice of companion, the employees had waived any breach by their employer given that they were able to choose an alternative.

On appeal, the EAT held that there had been a breach by the employer when it refused the request in the first place; a worker has an absolute right to choose their companion and the word 'reasonably' does not apply to the choice of companion.

Draft Code

The Draft Code confirms that an employer must agree to a worker's request to be accompanied by 'any' chosen companion and that the statutory requirement for a request by a worker to be accompanied to be 'reasonable' applies to the making of the request, not to the worker's choice of companion. The Draft Code also inserts further guidance to the effect that a worker can change their chosen companion if they wish, and can do so without waiving their right to change their choice again. The Draft Code is awaiting parliamentary approval.

Conclusion

The liability attached to any failure by an employer to allow the worker to be accompanied by their chosen companion is, however, extremely limited. A tribunal can only order an employer to pay compensation of up to two weeks' pay (currently £928). In Toal¸ the EAT declined to decide the amount of any compensation that the Claimants should receive, and indicated that a tribunal in that case might feel constrained to make an award of nominal compensation only, 'either in the traditional sum now replacing 40 shillings (i.e. £2) or in some other small sum of that order.'

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

About the Author

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Michael Briggs

Senior Associate

0370 086 5066

Michael is an experienced employment lawyer who provides practical, commercial and results-driven advice to a wide range of clients in respect of disciplinary matters, redundancy & reorganisation, absence and performance issues, employment contracts & handbooks and executive appointment & exits. Michael also defends employment tribunal claims.

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