Any employee who is summoned to a disciplinary hearing or grievance meeting by their employer is entitled to bring a companion to the meeting. This right stems from statute and is echoed in the ACAS Code of Practice. The companion may be either a work colleague or trade union official.
The ACAS Code expressly states that to exercise the right to be accompanied, the employee must make a “reasonable request”. Examples of possible unreasonable requests include employees from remote geographical areas where a more local companion is available, or a companion who might prejudice the meeting itself.
The legislation which creates the right to bring a companion says nothing about reasonableness – the right is absolute so long as the person is either a work colleague or trade union official. Given the inconsistency between the ACAS Code and the legislation, which one should trump the other?
Guidance was offered by the EAT in Toal and another v GB Oils Ltd where it was held that the employer acted unlawfully in insisting that the employee brought a different companion from the employee’s chosen companion. The right to bring a companion is absolute and cannot be fettered by the ACAS Code’s reference to reasonableness.
An employer who breaches the obligation to allow a companion can face an employment tribunal claim. The tribunal has discretion to award compensation capped at two weeks’ pay (which is also subject to the cap of £464 per week). It was suggested that Toal should be awarded £2!
Perhaps not high value claims however employers should be aware that employees have free reign to select who they wish as a companion so long as they are within the goalposts of being work colleague or trade union official. A failure by the employer to play by the rules could potentially impact on the fairness of the dismissal.
An amended version of the ACAS Code, to reflect the outcome of Toal, was placed before Parliament last week.