The revised ACAS Code of Practice on Disciplinary and Grievance Procedures came into force on 11 March 2015. The revised code now confirms that an employer must agree to a worker’s “reasonable” request to be accompanied by any chosen companion from one of the statutory categories, of a fellow worker, trade union representative, or official.This change came about following the case of Toal v GB Oils Limited UKEAT/2013, but what is the nature of this change and how will it affect employers?
Section 10 of the Employee Relations Act 1999 gives employees attending a disciplinary or grievance hearing the right to be accompanied if they make a “reasonable request” to their employers. ”Reasonable request” is not defined in the Act, but it was thought at one time that a request would not be reasonable if the choice of companion was unreasonable and the Acas Code reflected this. However, in the Toal case the EAT decided that a worker has an absolute right to choose a companion from the three statutory categories.
The Code has been revised to confirm that:
1. Employers must agree to a worker’s request to be accompanied by any chosen companion from one of the statutory categories of companion, i.e. a fellow worker, trade union representative or official.
2. A worker may alter their choice of companion if they wish.
3. To exercise the right to be accompanied workers must make a reasonable request (one that provides sufficient information and time to allow the employer to deal with the practicalities of the companion’s attendance at the hearing).
4. A worker should provide their employer with the name of the companion where possible and specify if it is a fellow worker, trade union representative or official.
5. If an employee’s choice of companion is not available then the employer must postpone the hearing to another date that is reasonable and within five days of the original date.
What are the penalties?
These changes to the Acas Code may seem rather minor. But, it is worth bearing the following in mind. A worker is entitled to bring a tribunal claim if their employer fails, or threatens to fail, to comply with their right to be accompanied. The value of this claim on its own is limited to compensation of up to two weeks’ pay. The Toal case indicates that the compensation an employee may claim in these circumstances might be limited to a nominal sum, perhaps £2 or similar small sum. This would be where an employer has constrained the employee’s choice of companion, but in fact the worker has not experienced any actual disadvantage as a result. This limited penalty might lead employers to ignore this right, particularly where a worker wishes to bring a companion that the employer has concerns might cause difficulties at the hearing.
However, employers should be careful, as the revisions to the Acas Code (outlined above) mean the tribunal could potentially increase the compensation awarded to the employee by up to 25% if it considers the employer has unreasonably failed to follow that part of the Code. So, although the right to be accompanied itself has a limited penalty, failing to follow the updated Code could have significant consequences if the worker later brings a related tribunal claim, for example, for unfair dismissal. This means if an employer is concerned about the suitability of potential companion this may well be better dealt with as an issue at the hearing, for example, where there might be inappropriate behaviour that needs to be managed, rather than to exclude this person from attending the hearing.
The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To this or any other HR issue call 01392 210700 or employment@stephens-scown.co.uk