It has been a longstanding right that where a worker is invited to attend either a disciplinary or grievance hearing, provided that their request has been made reasonably, they have a right to be accompanied to that hearing by a fellow worker, a trade union representative, or an official employed by a trade union. Employers have often taken the view that they have a right to veto the choice of companion if they deem them unsuitable but the recent case of Toal v GB Oils Ltd [2013] and the newly revised Acas Code have changed that position.
It is not uncommon for workers to sometimes select a companion whom the employer would deem unsuitable, for example, they may be a witness in the relevant proceedings or perhaps a fellow co-accused in a disciplinary process. In these scenarios, employers have often blocked the companion from attending, relying upon the reasonableness wording within Section 10 of the Employment Relations Act 1999 and most recently the Acas Code.
In the case of Toal v GB Oils Ltd [2013], the main issue for the Employment Appeal Tribunal ("EAT") was to consider whether a worker's choice of companion had to be reasonable. The EAT held that the worker had an absolute right to choose a companion provided that they fell within one of the prescribed categories. The reasonableness test applied only to how the request was made, not the choice of companion. For example, the worker should notify the employer that they will be accompanied and where possible, provide their companion's details to the employer in advance of the hearing. As from 11 March 2015, the Acas Code has been amended to enshrine these principles.
If an employer breaches the worker's right to be accompanied, there are a couple of potential ramifications. Firstly, the worker can claim up to two week's pay subject to the statutory cap. Secondly, if the matter escalates to Tribunal litigation, the worker will seek to demonstrate procedural unfairness which in the worst case scenario, could impact on the fairness of a dismissal and lead to an uplift of up to 25% in compensation.
Now is an opportune time to review existing disciplinary and grievance procedures and practices to ensure that they comply with the updated Acas Code. Employers need to move away from a practice of vetting the suitability of companions. However, if a choice of companion does cause major concern there are ways to manage the situation and we would be more than happy to help.
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