All workers have the right to be accompanied at a disciplinary or grievance hearing by a colleague or union representative if they make a reasonable request.
This right is enshrined in the Employment Relations Act 1999 however, the act itself does not define what constitutes a “reasonable request”. The ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code) provides guidance stating that “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 be asked to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site”.
Those with unionised workforces in particular will be all too familiar with a situation in which a worker insists that a senior union official who lives miles away and has very limited dates of availability simply must be their chosen companion at their disciplinary hearing. Previously, a robust approach in accordance with the ACAS Code would be to refuse such an unreasonable request.
However, this approach has been cast into doubt by the recent EAT decision in Toal and Another v GB Oils Limited. In this case Mr Toal and another employee raised grievances against their employer, GB Oils Limited. They elected to be accompanied by an official of Unite the union. This request was refused by their employer and the employees pursued claims of breach of section 10 of the Employment Relations Act 1999. The EAT concluded that the employees had an absolute right to choose who they should bring as their companion to a grievance hearing. However, this may have been a hollow victory for the employees concerned as the EAT declined to award the maximum payment of 2 week’s pay, saying it was questionable how much detriment had been caused to the employees by refusing their companion of choice.
ACAS has now launched a consultation on a revision to the ACAS Code to reflect the decision in Toal. The consultation closes in January 2014.
Look out for resulting changes to the ACAS Code. In the meantime it would be prudent to exercise a more cautious approach when considering a refusal to allow an employee to be accompanied by their chosen companion.