by Lara Murray
Amendments are being proposed to the ACAS (Advisory, Conciliation and Arbitration Service) Code of Practice to clarify the legal position of workers who wish to be accompanied in a disciplinary or grievance hearing.
ACAS is consulting on plans to change the wording of the Code following an Employment Appeal Tribunal decision (Toal & Hughes v GB Oils Ltd) in which both claimants were refused permission by their employer to be accompanied at grievance meetings by an elected official of the Unite union. The claimants subsequently asked a colleague to accompany them instead.
They appealed against the outcome of the grievances and were allowed to have a different elected union official with them at the appeal hearings.
The case raised concerns that the original wording in the Code of Practice was not clear enough in relation to the right of workers to choose who accompanies them to such hearings.
The existing wording states that, where a worker is required or invited by their employer to attend a disciplinary or grievance hearing and reasonably requests to be accompanied at the hearing, that worker can be accompanied by any of the following:
- another worker
- a paid trade union official
- an unpaid trade union official who been certified by a trade union.
The current version of the Code says: “To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing. Nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.”
The Tribunal found that this wording did not go far enough to clarify the legal right of workers to choose their companion, with the confusion appearing to have arisen from interpretation of the word ‘reasonable’.
This has prompted ACAS to propose the following amended wording:
“To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case, and the workers are free to choose any fellow worker, trade union representative or official as set out in para 14 (or para 35) as a companion. In making their choice, however, workers should bear in mind the practicality of the arrangements. Thus it may neither be sensible nor helpful to request accompaniment by a colleague from a geographically remote location when someone suitably qualified is available on site; nor to be accompanied by a colleague whose presence might prejudice the hearing or whom might have a conflict of interest. The request to be accompanied does not have to be in writing or within a certain timeframe but workers should consider how they make their request so that it is clearly understood and provides enough time for it to be considered by their employer.”
ACAS considers that this revised wording will make it clear that workers can choose whoever they want as a companion for hearings.
A request to be accompanied cannot be refused if it is reasonable.
While the proposed amendments are unlikely to have a significant impact on a day-to-day basis, it is nevertheless important that all employers ensure they are fully compliant with any new measures which come into effect.
If in doubt, it is always best to seek advice from an employment law specialist, as ignorance will be no defence in the event of a claim being brought by an employee.
Lara Murray is an employment law solicitor at Palmers Solicitors, advising clients across a wide range of sectors. She is a member of the Employment Lawyers Association and can assist businesses in relation to all employment law matters, including via Palmers’ HR package. For further information or for details of our HR package, please contact Lara on 01268 240000 or email firstname.lastname@example.org. For further information on Palmers, please contact us.