As many of you are no doubt aware, employees have a statutory right to be accompanied by a trade union representative or a fellow worker of their choice at a disciplinary or grievance hearing (section 10, Employment Relations Act 1999 (ERelA)).
Following a recent decision of the EAT in the case of Toal v GB Oils Ltd, it has been determined that the employee has an absolute right to choose that companion and it is not for the employer to determine whether that choice is reasonable or not. It is the request itself to be accompanied, that must be reasonable, not the identity of the companion.
The EAT’s view therefore seems to be that provided the request to be accompanied generally is reasonable (i.e. they have made the request with sufficient time ahead of the meeting) then the requirements of section 10(1) of the Employment Relations Act are satisfied and there is no requirement that the employee’s choice of companion is reasonable too.
The ACAS code of practice currently suggests otherwise and it states, “What is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site”.
Acas has now begun consultation on amendments to the Code of Practice on Disciplinary and Grievance Procedures regarding the right to be accompanied at disciplinary and grievance hearings and what constitutes a “reasonable request”.
However, as a client, if you are concerned about the presence of a particular companion, you may want to weigh up the disadvantages of having the companion present compared to the maximum compensation that may be awarded for breach of the right (currently two week’s pay, capped at £450 per week).