ACAS has issued a new Code of Practice on Disciplinary and Grievance Procedures, which came into force last Wednesday (11 March 2015).
The new Code has been issued due to uncertainty regarding workers’ statutory rights to be accompanied by a trade union representative or fellow worker at disciplinary and grievance hearings, following the EAT decision in Toal and another v GB Oils Ltd.
In Toal, the EAT held that an employee's right to choose a companion is an absolute right, which is subject only to the requirement set out in the Employment Relations Act 1999 that the companion be a trade union representative or fellow worker.
This decision was at odds with the previous version of the ACAS Code, which stated “To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case.”
In the new Code, ACAS reflects the decision in Toal, stating “The statutory right is to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker. Employers must agree to a worker’s request to be accompanied by any companion from one of these categories” (emphasis added).
This could give rise to potential issues, for instance where an employee’s chosen companion is somehow involved in the matter under investigation, meaning that they may have a conflict of interests.
Note that employees may receive compensation for a breach of the right to be accompanied, up to a maximum of two weeks' pay.
No other parts of the ACAS Code have been changed.