In December 2013 Acas consulted on changes to its Code of Practice on Disciplinary and Grievance Procedures to reflect the EAT ruling in Toal v GB Oils. A revised draft has now been published for parliamentary approval, clarifying the right to a companion. Employers will need to review and update their disciplinary and grievance policies to reflect the revised Code.
Toal concerned employees’ right to a companion at a disciplinary or grievance hearing provided they make a ‘reasonable request’. The current version of the Code assumed that the quality of reasonableness applied to the identity of the companion, such that a request would normally be unreasonable if the companion’s presence would prejudice the hearing or involve a conflict of interest, or if the companion were from a remote geographical location and someone else suitable and willing were available on site. The EAT ruled that this was wrong and that an employee is free to choose such a companion (provided they are from the specified categories of companion, ie work colleague or trade union representative/official).
The revised Code now provides that:“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.” It is useful that the Code confirms that a worker can agree to a different companion, for example if he/she accepts objections made by the employer as to the suitability of the first choice because of a conflict of interest or potential prejudice. “As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements. For instance, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location.” The new draft has been changed to make clear that this is good practice only and not a legal requirement. “To exercise the statutory right to be accompanied workers must make a reasonable request. The request does not have to be in writing or within a certain time frame, but the worker should provide enough time for the employer to deal with the companion’s attendance at the meeting. Workers should also consider how they make their request so that it is clearly understood, for instance by letting the employer know in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative.”
The Employment Lawyers Association’s response to this consultation raised our concerns that tribunals might be influenced by the new Code to conclude that a dismissal is unfair simply because an employer has refused to allow a chosen companion (perhaps for justifiable reasons such as conflict of interest). In its response Acas acknowledges that “if the worker’s choice was designed to disrupt the process then the remedy for the employer’s breach of their right by refusing their choice of companion, might only be nominal. Moreover, there may also be a limited impact on any subsequent unfair dismissal case, as an employer’s refusal to allow an employee to be accompanied by their companion of choice would not necessarily make the dismissal procedurally unfair nor necessarily lead to any uplift in any compensation awarded.” However, Acas states that it is more appropriate to cover this issue in non-statutory guidance rather than the statutory Code.
There may be further changes in the future. Given that “it is 5 years since the Code was last reviewed and given the changing nature of conflict and dispute resolution at work”, the Secretary of State for Business has stated that he has asked Acas to undertake a wider consultation on the Code of Practice as a whole.