In December 2013 Acas consulted on changes to its Code of Practice on Disciplinary and Grievance Procedures (the Code) to reflect the Employment Appeal Tribunal (EAT)’s ruling in Toal v GB Oils. See our previous blog:
Acas has now published a draft revised Code subject to parliamentary approval. Revisions include that employers must agree to a worker’s request to be accompanied by any chosen companion from one of the prescribed categories (i.e. a fellow worker, a trade union representative, or an official employed by a trade union).
This follows the position in Toal, in that there is no requirement for the choice of companion to be reasonable per se. Furthermore, the revised draft Code has been changed to make it clear that it is good practice for an employee to bear in mind the “practicalities of the arrangements” but stops short of making this a legal requirement.
Further clarification on the requirement for reasonableness on the part of the employee has also been included in the Code. The employee should provide enough time for the employer to deal with the companion’s attendance and ensure that the request is clearly understood – e.g. by giving the name of the companion and what category they fall into. However, if the companion is not available at the time of the proposed hearing, the employer must postpone to a later date.
So what are the potential consequences if an employer refuses to allow a worker’s chosen companion?
Where an employer breaches this right, if there is no loss or detriment suffered by the employee, then only a nominal award of compensation is likely to be made.
The Secretary of State for Business has now asked Acas to undertake a wider consultation on the Code as a whole. We will therefore continue to update you on any further proposals. In the meantime, employers should review and update their disciplinary and grievance policies to reflect the revised Code.
For more information, please contact a member of the Employment Team