The Employment Rights Act (1999) outlines a statutory right for workers to make a reasonable request to be accompanied at a Disciplinary or Grievance hearing. A reasonable request did not constitute an individual traveling from remote places according to the current ACAS Code of Practice, however, a recent ruling by the Employment Appeal Tribunal (EAT) in the case of Toal and another v GB Oils went against this. This has called the ACAS Code of Practice Disciplinary and Grievance Procedures into question.
ACAS have revised their Code of Practice to include the following. During a Disciplinary and Grievance situation, if the employee makes a request to be accompanied, and providing they have made a reasonable request to be accompanied, they have the right to choose whoever they like as a companion. As long as the companion is from one of the categories set out below (section 10 of ERA 1999):
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.
A person is within subsection 3 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.
The draft Code has been approved by the Secretary of State for Business, Innovation and Skills and is pending Parliamentary approval.
For more information about these changes or any other Employment Law issues, please contact one of our specialist HR consultants.
