Acas has amended its Code of Practice on Disciplinary and Grievance Procedures (‘the Code’) in relation to the right to be accompanied at disciplinary and grievance hearings.
The Code is designed to ensure that employers follow a fair procedure when dealing with disciplinary or grievance issues and it has statutory effect. Employment tribunals are obliged to have regard to the Code when dealing with claims to which it applies, and employers found to have unreasonably failed to follow the provisions of the Code may be subject to an increase of up to 25 per cent in any compensation subsequently awarded against them.
The move to amend the Code is a delayed response to a 2013 Employment Appeal Tribunal case, Toal and another GB Oils Ltd, which suggested that the Code, as was, did not accurately reflect the law on the statutory right to be accompanied.
Section 10 of the Employment Rights Act 1999 (‘the ERA’) provides that where an employee is asked to attend a grievance or disciplinary hearing and reasonably requests to be accompanied at that hearing either by a work colleague, a trade union representative or trade union official (‘an approved companion’), this must be allowed . A ‘reasonable request’ is not defined in the ERA. Prior to amendment, the Code stated that it would not normally be ‘reasonable’ for an employee to insist on being accompanied by an approved companion who would need to travel from a remote location, if there was somebody suitable and willing to accompany the employee based at the same location as the employee.
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In Toal, the EAT found that the test of ‘reasonableness’ under S10 of the ERA applied to the request to be accompanied at a hearing, rather than to the choice of companion. So long as an employee made a ‘reasonable request’ to be accompanied they had an unfettered right to be accompanied by whomever they liked - so long as the companion fell within one of the statutory categories of approved companion.
Following the decision in Toal, Acas launched a consultation on those parts of the Code (and the accompanying non statutory guidance) dealing with the right to be accompanied. This has resulted in the recently published amendments.
The revised Code:
Deals with the issue of how to make a reasonable request separately from whom an employee can choose as a companion.
Confirms that whether a request to be accompanied is ‘reasonable’ will depend on the circumstances of the particular case, which if disputed will ultimately come down to a tribunal to decide on the facts before it.
Expressly provides that an employer ‘must’ allow an employee to be accompanied by a statutorily approved companion, if a reasonable request has been made.
Confirms that it is not necessary for an employee to make a request to be accompanied in writing or within a specific time frame. However, employees are encouraged to make their requests clear and provide their employer with the name of their chosen companion as well as confirming which category of approved companion they fall in. Employees are also encouraged as ‘a matter of good practice’ to consider the practicalities of choosing a particular companion, including their geographic location and ensure they provide enough time for their employer to facilitate their chosen companion’s attendance at a meeting.
Makes provision for an employee to alter their choice of companion.
In addition to amending the Code, Acas have also amended the accompanying non-statutory guidance on disciplinary and grievance procedures to provide that employers may, if they wish, allow an employee to be accompanied at a disciplinary or grievance hearing by someone other than a statutorily approved companion. In certain circumstances, the requirement to make reasonable adjustments for a disabled employee may even require this.
You can link to the updated Acas Code and accompanying Acas guidance.
Employers should ensure that their existing provisions for workers to be accompanied in their current disciplinary and grievance procedures are not inconsistent with the amendments to the Code.
In addition, in January, the Business Secretary, Vince Cable, announced that BIS had made a request to ACAS to undertake a wider consultation on the operation of the Acas Code and there may therefore be further additional changes made to the Code in the not too distant future.
As always, we will keep you updated.
How can we help further?
Members can also find further information and assistance in relation to the handling of disciplinary and grievance issues, including model disciplinary and grievance policies in the Disciplinary, grievance and sickness absence section of our website.
It is also worth bearing in mind that offering mediation at an early stage may avoid the need to enter into formal disciplinary or grievance proceedings at all. For further information, see EEF’s mediation services.