Acas have issued an updated Code of Practice following an appeal hearing about a worker’s right to be accompanied.
The ACAS Code of Practice March (2015) was released after an appeal determined that if an employee makes a reasonable request to be accompanied to a disciplinary or grievance hearing, their choice of who they take does not also need to be considered reasonable by their employer.
An Employment Appeal Tribunal (EAT) claim was raised in relation to the 2013 case of Toal & Anor v GB Oils Ltd. During the EAT the judge also ruled that when an employee is refused their first choice of companion, they do not then waive their right to be accompanied if they chose to take someone else.
The amendment relates to two GB Oils employees who raised a grievance and subsequently attended a hearing. As both employees were members of Unite they requested to be accompanied by an official of that trade union; however GB Oils refused and the employees instead had to take a fellow colleague as their companion.
The matter went to the Employment Tribunal, which concluded that whilst GB Oils were potentially in breach of their statutory obligations under the Employment Relations Act (ERA) 1999, the claimants had waived that breach when they took their enforced companion. The employees appealed this decision at the EAT.
The EAT rejected GB Oil’s argument that “reasonably requests to be accompanied at the hearing” from section 10 of the ERA applied to both the employee’s option to be accompanied and their choice of representative. It went on to state that the wording of the original code is perfectly clear. The EAT also disagreed with the Employment Tribunal’s conclusion that the employees had waived GB Oil’s breach of statutory obligation by taking their second choice companion; instead, the EAT reaffirmed that statutory rights can only be waived by means of a valid compromise agreement.
Acas has changed the wording of its Code of Practice to state:
“The statutory right is to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union.”
“Employers must agree to a worker’s request to be accompanied by any companion from one of these categories. Workers may also alter their choice of companion if they wish. As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements.”
Whilst the employees did win their appeal, the EAT ruled that as there had been no loss or detriment to the employees it could only award a nominal amount of compensation. As per tradition in cases of mandatory compensation the amount awarded was 40 shillings, or £2.00 in today’s money.
The case was remitted back to the Employment Tribunal to decide upon the compensation for the original grievance.
HR Solutions’ policies already include the right for employees to choose their companion if they find themselves in a disciplinary or grievance hearing.