Companions at Discipline and Grievance Hearings

Parliament has approved amendments to the new Acas Code of Practice on Disciplinary and Grievance Procedures in relation to Companions at Discipline and Grievance Hearings.

The Employment Relations Act 1999 (ERelA) states that workers attending formal disciplinary or grievance meetings may make a reasonable request to be accompanied at the hearing by a fellow worker, trade union representative or official.

The amended ACAS Code clarifies that the reference to a “reasonable” request applies to the making of the request not to the worker’s choice of companion. As such, a request made five minutes before a meeting for accompaniment by a companion located 250 miles away probably would not be reasonable. However, as long as the request is made reasonably, there is nothing stopping an employee from choosing any companion from the three statutory categories. Therefore, it appears there is little an employer can do to prevent a particularly difficult or disruptive companion attending a meeting where a request is made reasonably. However, the ERelA does limit the scope of a companion’s involvement in a meeting. The amended Code also confirms that a worker may change their chosen companion if they wish.

Acas has also amended its non-statutory guidance booklet to reflect what has been best practice for some time. The guidance now confirms that employers may allow workers to be accompanied by companions who do not fall within one of the three statutory categories. The guidance goes on to say that the duty to make reasonable adjustments for disabled workers may even require this. For example, it may be reasonable for a vulnerable adult to be accompanied by a parent or a support worker.

Date Published: 21 January 2015

Revised Acas Code of Practice on Disciplinary and Grievance Procedures

ACAS has revised its Code of Practice on Disciplinary and Grievance Procedures because part of it was wrong.

The Code incorrectly sets out the law in relation to an employee’s statutory right to be accompanied – you may only object where there’s a conflict of interest.

In a recent Employment Appeal Tribunal’s (EAT), Toal and another v GB Oils Ltd 2013, Mr Toal and his colleague, Mr Hughes, successfully argued that their employer had deprived them of their statutory right to be accompanied when it refused their first choice of companion at a grievance meeting.

ACAS accepted that the Code suggested “an erroneous interpretation of the law” and launched a consultation which closed in January last year.

The amended Code makes it clear that:

Provided the companion is chosen from one of the statutory categories, namely a “fellow worker, trade union representative, or an official employed by a trade union” and the request itself is made in a reasonable manner, the employer is not entitled to reject the worker’s choice of companion.

To prevent confusion, the Code also clarifies that choosing a companion from the same work location rather than a geographically remote location is a matter of good practice only and not a legal requirement.

This means that the choice of companion rests firmly with the employee.

The Code states that a request does not have to be in writing but that, for example, a worker should “provide enough time for the employer to deal with the companion’s attendance at the meeting” and let the employer “know in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative.”

The revised Code is currently before Parliament awaiting final approval.

What’s Next?

This narrow change may precede future, more far-reaching amendments to the Code as BIS have requested a wider consultation on the Code as a whole.

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Companions at Discipline and Grievance Hearings

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