A recent EAT decision has now effectively determined that a paragraph of the Acas Code of Practice on Disciplinary and Grievance procedures is wrong. As a result managers have very little scope to interfere with an employee or worker's choice of companion at disciplinary or grievance hearings (since the right applies to the broader category of workers which includes employees), provided the companion is one of the prescribed persons in the legislation (colleague, trade union representative or certified trade union official).
The right to be accompanied under Section 10 of the Employment Relations Act 1999 applies where the worker reasonably requests to be accompanied. What amounts to a reasonable request is not defined within the legislation but it had been assumed that persuasive guidance on this point could be found in the Acas Code on Disciplinary and Grievance Procedures, which states at Paragraph 15 that:
“To exercise the statutory right to be accompanied workers must make a reasonable request. 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.”
Since the publication of the Acas Code in 2009, the prevailing view has been that this meant that the ‘choice’ of the identity of the companion must be reasonable. Not so, says the EAT in the recent decision of Toal v GB Oil, where the EAT expressly rejected the limitations suggested in paragraph 15 of the Acas Code.
In this case two employees raised grievances and were invited to attend grievance meetings. They chose to be accompanied at the grievance hearing and subsequent appeal by a trade union official who was certified to attend meetings. Their employer refused their request, leading them instead to arrange for a colleague to accompany them. They each brought claims arguing a breach of Section 10. The EAT made it clear that the choice of companion should be determined by the worker and is only limited by the requirement that the companion falls within one of the three prescribed categories – work colleague, union representative or certified union official.
The EAT also did not consider that the employees had waived the statutory breach by then requesting another individual to attend the meeting with them. It refused to award the maximum 2 weeks compensation (capped at the statutory rate of £450 per week) for each meeting and said instead that where there was no loss or detriment to the claimant then a nominal sum may be more appropriate. Accordingly the EAT remitted the case to the tribunal to assess the appropriate level of compensation.
It remains to be seen whether Acas will feel compelled to revise paragraph 15 of the Code of Practice or whether the Government may wish to intervene to appeal on policy grounds (akin to the potential appeal against the recent USDAW decision on the collective dismissal regime in s188 TULRCA 1992). We anticipate that trade unions will disseminate the details of the decision to their officials and representatives, who will seek to rely on it in the future.
The position is clearly unsatisfactory for employers faced with the practicalities of applying this decision, especially when many disciplinary and grievance procedures adopt similar wording to paragraph 15. If an employee wants to be accompanied by a colleague who is based at the other end of the country, then on the face of the Toal decision the employer has to accept this and incur the lost working time and increased travel costs. This decision does seem to run counter to the Government’s desire to cut red tape and remove burdens on businesses, so perhaps s.10 itself will be revised (although with the pressure on Parliamentary time this may itself be challenging).
We would recommend that employers follow the EAT guidance as set out in the Toal case pending any appeal of the decision or statutory revision. Employers who choose not to follow the Toal approach may take some comfort in the fact that the potential compensation is likely to be less than £900, at a time when claimants have to pay £390 in tribunal fees to proceed to a full hearing, and as such this may be a risk worth taking.