Under the statutory right to be accompanied at a disciplinary or grievance hearing, an employee is able to choose any fellow worker or a trade union official or representative as a companion, provided the employee makes a "reasonable request". What constitutes a reasonable request is not defined but the current ACAS Code of Practice states that it would not normally be reasonable for a worker to insist on being accompanied by a companion who would have to come from a remote geographical location if someone suitable and willing was available on site, or by someone whose presence would prejudice the hearing.
In Toal v GB Oils Ltd in 2013 the EAT held that an employee's choice of companion for a disciplinary or grievance hearing does not need to be "reasonable". That decision was re-confirmed in Roberts v GB Oils Ltd last year, even though the EAT had some concerns about the problems that the decision could cause for employers.
In the meantime, in the light of the Toal case ACAS decided to revise its Code and has just published the results of its consultation. New wording in the Code now states clearly that employers must agree to a worker’s request to be accompanied by any chosen companion from one of the statutory categories; and (another point confirmed byToal) can alter their choice if they wish. The Code goes on to say that "as a matter of good practice" workers should bear in mind the practicalities of their choice, by choosing someone on site rather than from a remote location. The example of "someone whose presence would prejudice the hearing" has been deleted.
The Government has also announced that the Code, now five years old, will be given a general review.
The EAT in Toal hinted that if an employer were to refuse the choice of companion, compensation for a breach of the right was likely to be low and Roberts v GB Oils Ltd also confirmed that where there had been a technical breach of the right, as might be the case where the employer had a legitimate objection to the chosen companion, it was open to the tribunal to reflect that in its assessment of compensation. That could involve a tribunal making a nil award where the employee had suffered no prejudice as a result of the breach.