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A reasonable companion? ACAS updates its Code

As you will all know, workers have the right to be accompanied by a fellow worker or trade union representative when they are asked to attend a disciplinary or grievance hearing.  The entitlement is enshrined in the Employment Relations Act 1999 which provides that the right will apply where the worker "reasonably requests to be accompanied at the hearing".

For many years, this has been interpreted as meaning that an employer need only accept "reasonable" requests for a companion.  So, if a worker made a request which an employer considered to be unreasonable (for example, to be accompanied by a witness or someone also accused of misconduct), it has generally been the view that employers had discretion to refuse that companion.  This approach was reflected in the ACAS Code of Practice on Disciplinary and Grievance Procedures.

This all changed with the case of Toal and another v GB Oils Ltd [2013] IRLR 696, in which the EAT held that a worker has an absolute right to choose a companion (provided that they are a fellow worker or trade union representative).  The statutory requirement for a worker's request to be "reasonable" only applies to the making of the request, not to the worker's choice of companion.  ACAS has now reinforced this approach and, on 16 January 2015, published proposed amendments to the ACAS Code and its accompanying guidance confirming the new position on companions (here).  Although these are still to be confirmed by Parliament, it is expected that the changes will be approved. 

In reality, the compensation available to a worker in the event an employer fails to comply with their right to be accompanied is extremely limited – up to two weeks' pay subject to the statutory cap (i.e. currently a maximum of £928).  However, that doesn't mean employers have carte blanche to ignore the right.  In our experience, adopting best practice at the early stages of a disciplinary or grievance process can help diffuse otherwise potentially inflammatory situations.  Moreover, should the worst happen and a claim be brought, it is not likely to go down well with a Tribunal if an employer has run rough shod over an employee's right to accompaniment.  Since a breach of the ACAS Code can also result in an uplift to compensation of up to 25%, a Tribunal could also find other ways of penalising an employer for their breach.  It is therefore recommended that employers review their general practices (and if necessary their policies) on companions to ensure that they reflect the updated Code.

On that note, here is a quick reminder of the right to be accompanied, taking into account the proposed changes to the ACAS Code:

  1. Workers have the right to be accompanied to disciplinary hearings (i.e. a hearing which could result in disciplinary action or the confirmation of such action) or grievance hearings.  This right extends to appeal meetings.
  2. Employers must agree to a worker's request to be accompanied by a chosen companion (subject to 3 below).
  3. The companion must be a fellow worker or trade union representative (even if the worker is not a member of a trade union).  Employers can still refuse requests for a companion who falls outside of these categories (although in cases concerning disabilities might want to consider if it is a reasonable adjustment to broaden the entitlement).
  4. A request for a companion does not need to be in writing or within a specific time frame and a worker can change their mind over their choice of companion. 
  5. A worker should provide the employer with the name of the companion where possible and give an employer enough time to make any necessary arrangements to allow the chosen companion to attend the meeting.
  6. If a companion cannot attend on the date proposed for the meeting, the employee has the right to suggest an alternative time which is not more than five working days later.
  7. The companion is permitted to address the disciplinary hearing (including putting the worker's case, summing up, and responding on the worker's behalf to any view expressed at the hearing) and to confer with the worker during the hearing.  They cannot answer questions on behalf of the worker or act in a way that prevents the employer explaining its case.  ACAS guidance suggests it is good practice to allow a companion to participate as fully as possible in the hearing.

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