ACAS has published proposals to change its Code of Practice on disciplinary and grievance procedures as a result of a surprise EAT decision earlier this year that an employee's choice of companion for a hearing does not need to be "reasonable".
The legislation says that the employee can choose a companion as long as certain requirements as to the identity of the companion are fulfilled (they must be an employee, a union official or certified by the union as having experience or training in acting as a companion). Although the ACAS Code previously suggested that being accompanied by a companion whose presence might prejudice the hearing might not be considered "reasonable", in July the EAT in Toal v GB Oils Ltddecided that the legislation was clear and therefore the suggestion in the Code was not relevant. The employer had breached the employee's rights by refusing to allow him to be accompanied by a particular union official (although the EAT did go on to suggest that any compensation for a breach of statutory rights on this basis should be nominal in the absence of financial loss).
The amended ACAS wording now says that workers must make a "reasonable request" to be accompanied and in making their request, "should bear in mind the practicalities of the arrangements" and also provide enough time for their choice to be considered by the employer. The proposed amendment goes on to give two examples of choices of companion that "may be neither sensible nor helpful":
a colleague from a geographically remote location, if someone suitably qualified is available on site
a colleague whose presence might prejudice the hearing or who might have a conflict of interest.
These examples are the same as those given in the existing version of the Code as instances of choices that would "not normally be reasonable", so there is a clear change of emphasis here. However, given that the legal position following Toal is that the tribunals must uphold any choice that is within the legislative requirements, regardless of the Code, the new wording does not provide any effective let out for employers in a situation where they have reservations about the employee's choice of companion.
Nor is there much comfort to be gained from the suggestion that compensation for a breach of the employee's right to be accompanied might be nominal; in a case earlier this year, Leeds Dental Team v Rose, the EAT confirmed that an employee was unfairly constructively dismissed when, amongst other procedural errors, she was refused her chosen companion at a disciplinary hearing.