The EAT ruled in the case of Toal and another v GB Oils earlier this year that the Acas Code of Practice on Disciplinary and Grievance Procedures did not accurately reflect the law on the statutory right to be accompanied to disciplinary and grievance hearings, under section 10 Employment Relations Act 1999.
Under the statutory right, the employee can choose to be accompanied to a hearing by either a trade union representative or a colleague, if they make a ‘reasonable request’. What is ‘reasonable’ is not defined in the 1999 Act. However, the Acas Code states that it might not be ‘reasonable’ for the companion to come from a remote geographical location, or if their presence might prejudice the hearing.
The EAT ruled that the right to be accompanied does not require the choice of companion to be reasonable; rather it is the employee’s request that has to be reasonable. The employee has the right to choose whoever they like as a companion, provided they are either a fellow worker or a trade union representative.
In view of this decision, Acas is proposing to change specific sections of the Code dealing with the right to be accompanied, in order to clarify what amounts to a reasonable request.
The proposed new wording is intended to make it clear that workers have the right to choose whoever they like as a companion, provided they fall within one of the permitted categories. However, it also retains as a ‘good practice point’ the suggestion that workers should have some regard to the practical effect of their choice of companion on the disciplinary and grievance process itself.
Acas has stated that whilst making these relatively minor changes, it did not consider it to be appropriate to undertake a major revision of the Code, particularly in view of the fact it was reviewed relatively recently (in 2009). It will continue to keep the Code under review and consider a more substantive revision if there is sufficient demand for it.
The consultation will close on 7 January 2014. There is no proposed date for the publication of the revised Code of Practice, but it is likely to be in the early part of 2014. A copy of the consultation is available on the Acas website.