Employment e-Brief: Revised statutory guidance on the ‘right’ to be accompanied
Monday 9th February 2015
On 16 January 2015, a revised draft of Acas’ Code of Practice on Disciplinary and Grievance Procedures (the ‘Code’) was published to give new guidance on a worker’s ‘right to be accompanied’.
The Employment Relations Act 1999 (ERA) states that where a worker ‘reasonably’ requests to be accompanied at a disciplinary or grievance hearing, an employer must permit the worker to be accompanied by one companion who is either:
- A fellow worker; or
- A trade union representative.
The Employment Appeal Tribunal (EAT) considered whether an employee’s choice of companion had to be ‘reasonable’ in the case of Toal and another v GB Oils Ltd. Here, the Claimants raised grievances with their employer and asked to be accompanied to the hearing by a specific trade union representative. The employer refused their request as that particular trade union official was banned from the site. The Claimants therefore had to be accompanied by different trade union officials.
At first instance, the Employment Tribunal decided that an employer could disagree with a worker’s choice of companion. However, the employees appealed this decision and the EAT held that the employer was in fact in breach of the ERA as a worker has a statutory right to choose their companion and an employer does not have any right (reasonable or not) to control that choice. The right for a worker to choose a companion is not interlinked with the statutory requirement for the request to be reasonable.
The newly revised Code is in line with EAT’s decision as it confirms that an employer has to agree to a worker’s request to be accompanied by any chosen companion (as long as they are a fellow colleague or trade union representative/official). In order to make this clear, the Code also states that the statutory requirement to be ‘reasonable’ is only applicable to the request itself and not to the worker’s choice of companion.
Interestingly, in Toal, the EAT did not specify a sum the Claimants should receive. They simply noted that in any similar case a Tribunal may feel constrained to order compensation of a ‘nominal sum’, such as “either the traditional sum replacing 40 shillings (i.e. £2) or some other small sum of that order.” In consideration of this, the current liability for not permitting a worker to be accompanied by their preferred companion is minimal. Compensation of up to two weeks’ pay (currently £928) is the maximum Tribunals can order an employer to pay for breaching this right and it cannot, in itself, amount to unfair dismissal.
Although the revised Code is awaiting Parliamentary approval it is thought unlikely to be refused. However, the Code does not comment on or alter the compensatory award available, so if an employer did not want a specific companion to accompany an employee to a meeting, the amount owed to the employee would be nominal – something for employers to think about!
If you would like to discuss this, please contact a member of the Employment team.