Acas Revises Code of Practice on Disciplinary and Grievance Procedures

Under Section 10 of the Employment Relations Act 1999 (ERA), when a worker is required or invited to attend a disciplinary or grievance hearing, they have a statutory right to be accompanied where this has been reasonably requested and the person chosen comes from one of three categories of individuals – either employed by a trade union, an unpaid official certified by the union or a fellow worker. What constitutes a reasonable request is not defined in the ERA, however.



In Toal and Another v GB Oils Limited, which concerned the refusal of GB Oils to allow Mr Toal and a colleague to be accompanied at a grievance hearing by a companion of their choice, the Employment Appeal Tribunal dismissed the employer’s contention that the word ‘reasonably’ applied not only to the request to be accompanied but also to the identity of the proposed companion. Provided the chosen companion comes from one of the three categories detailed in the ERA, the choice of companion is up to the employee.



Following this decision, the Advisory Conciliation and Arbitration Service (Acas) recognised that the wording of the Code of Practice on Disciplinary and Grievance Procedures as it stands does not accurately reflect the law and it therefore proposed to amend the Code accordingly.



Currently, the Code of Practice states:



‘To exercise the right to be accompanied a worker must first 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.’



Acas has now carried out a consultation exercise on a revision to the wording. This makes it clear that workers have a right to choose whoever they like as a companion, so long as they come from one of the defined categories of companion. However, it retains the good practice point that workers should have some regard to the effect that their choice of companion will have on the disciplinary or grievance process itself and also attempts to give some guidance on what is meant by ERA’s reference to ‘making a reasonable request’ by including some indications of the manner in which requests to be accompanied might be made.