Employers will need to review their disciplinary and grievance policies to reflect ACAS’s revised draft Code of Practice on Disciplinary and Grievance Procedures (Code), which was published for parliamentary approval on 16 January.
The changes reflect the Employment Appeal Tribunal ruling in Toal and another v GB Oils Ltd  IRLR 696 regarding workers’ right to be accompanied to disciplinary and grievance meetings, provided they make ‘a reasonable request’. The EAT ruled that, provided the companion is a work colleague or trade union representative/official the employer must agree to the worker’s request.
The current understanding is that an employer need only accept ‘reasonable’requests for a companion and the reasonableness of a request is governed by the identity of the companion. For example, it might be unreasonable if the choice of companion would lead to a conflict of interest.
The revised Code confirms that the absolute right to choose a companion is not linked with the requirement for the request to be reasonable. However, it does go on to say that “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”.
Additional changes to the Code are that:
- workers can change their chosen companion without waiving their right to change their choice again;
- a request does not have to be in writing or within a certain time frame but the worker should provide their employer with the name of the companion where possible and specify whether it is a fellow worker, trade union representative or official;
- a worker should provide their employer with enough time to make any necessary arrangements to allow the chosen companion to attend the meeting; and
- if a worker’s chosen companion is not available at the time proposed by the employer, the employer must rearrange the hearing to a time proposed by the worker (which must be both reasonable and within five days of the original date proposed).
The concern with these changes is that they could lead to an employment tribunal concluding a dismissal is unfair if an employer refuses a worker’s choice of companion.
However, Acas has said 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.”