Background

Section 10 of the Employment Relations Act 1999 (ERA) provides a statutory right for workers to be accompanied at a disciplinary (relating to conduct and/or performance) or grievance hearing where they make a reasonable request.

The EAT judgment in Toal v GB Oils 2013, clarified that the reasonableness requirement for requests does not apply to the worker’s choice of companion but rather to making the request itself review case here.  The correct legal position is therefore that workers can be accompanied by whoever they like, provided they are a work colleague trade union representative or official.

Implication for Employers

In the light of the EAT’s decision in Toal and following the results of a public consultation, ACAS has revised paragraphs 14 to 16 and 36 to 38 of its Statutory Code of Practice on Disciplinary and Greievance Procedures 2009 as follows:

  • Employers must agree to a worker’s request to be accompanied by any chosen companion who is either a fellow worker, a trade union representative or official.
  • Workers have the right to change their mind on their choice of companion.
  • Whilst not a legal requirement, as a matter of good practice in making their choice, workers should bear in mind the practicalities of the arrangements including whether their companion is suitable willing and able.
  • Workers must make a reasonable request and what is reasonable will not depend on the identity of the companion, but will depend on the circumstances of each individual case. In making a reasonable request, a worker should provide their employer with the name of the companion where possible and category and should give an employer enough time to make any necessary arrangements to allow the chosen companion to attend the meeting. The request does not have to be in writing.
  • Where a worker’s chosen companion cannot attend at the time proposed for the disciplinary or grievance hearing, the employer must postpone the hearing to a time proposed by the worker provided the alternative time is both reasonable and not more than five working days after the date originally proposed. They must continue to do this for as long as is reasonable.

The revised Code has been approved by the Secretary of State for Business Innovation and Skills and now been submitted for parliamentary approval review response to public consultation and revised Code here.

ACAS also intends to change its Guidance on Handling Disciplinary and Grievances 2014 to provide guidance about the above revisions.

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