ACAS set to amend Code on employee’s right to be accompanied

We recently wrote an article on the case of Toal and Another v GB Oils and an employee’s absolute right to choose a companion at a disciplinary or grievance hearing: https://devonshiresemployment.com/2013/10/04/right-to-choose-companion-is-an-absolute-right/

In this case the employer had relied on an interpretation of the ACAS Code of Practice on Disciplinary and Grievance Procedures (the ACAS Code) to argue that it was not reasonable to have as a companion someone who could be prejudicial to the hearing. The EAT held that there was no requirement for the choice of companion to be reasonable, as long as the choice came from an approved category and stated that the ACAS Code on an employee’s right to be accompanied was not available or relevant as an aid to the construction of the Employment Relations Act 1999.

In light of this decision ACAS has announced that they will be amending the ACAS Code to reflect the EAT’s decision. It seems likely that such amendments will involve the removal of their examples of unreasonable choices. This may therefore mean that where employers do not agree with an employee’s choice of companion, they may not have an option available to refuse such a choice provided it comes within an approved category.

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