Changes to the ACAS Code – The right to a companion

As of 11 March 2015, the ACAS Code of Practice on Disciplinary and Grievance Procedures has been amended in relation to a worker’s right to bring a companion to a disciplinary or grievance hearing. The change has come about following the Toal v GB Oils case heard by the Employment Appeal Tribunal in 2013. The amendments have been approved by Parliament and are now enforceable by law.

The previous wording of the ACAS Code

A worker has the statutory right to bring a companion of their choice to a disciplinary or a grievance hearing. The companion must however fit at least one of the following criteria:

  1. Be another of the employer’s workers.
  2. Be a trade union official employed by a trade union.
  3. Be certified by a trade union as having experience or training in relation to acting as a worker’s companion at a disciplinary or grievance hearing.

In order to exercise the right to be accompanied, the ACAS Code previously provided that “workers must make a reasonable request”. It is what amounts to a “reasonable request” that ACAS have sought to clarify with these changes.

The changes

In the case Toal v GB Oils it was held that the “reasonable” element of a request to be accompanied did not relate to the choice of who had been requested as a companion. It was held that a worker has the right to request whoever they like, as long as they fit one of the three criteria outlined above. The “reasonable” aspect of a request instead relates to the practicalities of a request – eg the geographical location of the companion requested or their willingness to attend. The changes to the ACAS Code reflect the decision made in this case.

What does this mean for the employer?

These changes mean that an employer must accept a request for a companion provided they fit the three criteria above and they are willing to attend. It is important to note that the companion requested should not suffer prejudice in the future by the employer if they choose to attend.

The new wording of the ACAS Code also lays out a number of factors outlining what constitutes a reasonable request under this pretence. There are a few important points to note:

 

  1. It states that it is merely good practice for a worker to make a reasonable request, rather than being a legal requirement.
  2. There is an express provision that allows a worker to change their choice.
  3. A request does not have to be in writing, but it should be made in a way that is clearly understood, preferably naming the intended companion and their current role (ie whether they are another worker or a trade union rep)
  4. A worker does not have to make a request within a certain timeframe, but it should give the employer enough time to deal with the attendance of the companion.
  5. If the chosen companion cannot make the time provided by the employer, the employer must postpone the meeting to a time proposed by the worker. The time proposed by the worker must be reasonable and within five working days of the postponement.

Given the regularity with which this issue is considered by employers, it is very important that employers and HR professionals make themselves aware of these changes. If in doubt, take advice!

Andrew Wallace
Trainee Solicitor – Employment
@EmpLawyerAndy
www.blackadders.co.uk

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