Acas is consulting on changes to its Code of Practice on Disciplinary and Grievance Procedures to reflect the EAT ruling in Toal v GB Oils. This case 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 proposed revised Code makes clear that employees have this choice, but goes on to note that it may be neither sensible nor helpful to choose such a companion.
The proposed revised Code also attempts to give meaning to the requirement for a request to be reasonable, suggesting that this relates to the manner of request. It states that, to be reasonable, a request does not need to be in writing or within a certain time frame, but that employees should consider how to ensure the request is clearly understood and provides the employer with enough time to consider it.
The closing date for responses is 7 January 2014. Employers will need to review and update their disciplinary and grievance policies to reflect the revised Code once is it finalised.