You may remember the case of Toal and another v GB Oils which was heard by the Employment Appeal Tribunal (EAT) back in May 2013. Contrary to popular belief, this case held that a worker’s right to chose a companion for the purposes of being accompanied at a disciplinary or grievance meeting was an absolute right subject only to the limitations set down in s.10 of the Employment Relations Act 1999 i.e. that the companion is a trade union representative, an official employed by a trade union or a fellow worker and the requirement that the request be “reasonable” applies only to the making of the request, not the choice of companion.
Following this decision, ACAS have revised their Code of Practice on Disciplinary and Grievance Procedures. The new Code took effect from 11 March 2015 and confirms that, provided a worker is making a request to be accompanied by a trade union representative, an official employed by a trade union or a fellow worker, the employer must agree to the request. With regard to the request being “reasonable”, the Code states that what is reasonable will depend on the circumstances of the case but the Code suggests that it may include matters such as the timing of the worker’s request and how the worker makes their request (e.g. by letting the employer know the name of the companion and which of the categories the companion fits into). In addition, ACAS have also updated their non-statutory guidance which accompanies the Code.
Employers may therefore wish to consider revising their policies to reflect the updated Code. However, it is worth bearing in mind that compensation for breach of the right set out in s.10 of the Employment Relations Act 1999 may be nominal where no loss or detriment has been suffered by the worker. For example, in Toal, when remitting the case back to the employment tribunal on this matter, the EAT hinted that the award should be £2 or “some other small sum”.
You may remember the case of Toal and another v GB Oils which was heard by the Employment Appeal Tribunal (EAT) back in May 2013. Contrary to popular belief, this case held that a worker’s right to chose a companion for the purposes of being accompanied at a disciplinary or grievance meeting was an absolute right subject only to the limitations set down in s.10 of the Employment Relations Act 1999 i.e. that the companion is a trade union representative, an official employed by a trade union or a fellow worker and the requirement that the request be “reasonable” applies only to the making of the request, not the choice of companion.
Following this decision, ACAS have revised their Code of Practice on Disciplinary and Grievance Procedures. The new Code took effect from 11 March 2015 and confirms that, provided a worker is making a request to be accompanied by a trade union representative, an official employed by a trade union or a fellow worker, the employer must agree to the request. With regard to the request being “reasonable”, the Code states that what is reasonable will depend on the circumstances of the case but the Code suggests that it may include matters such as the timing of the worker’s request and how the worker makes their request (e.g. by letting the employer know the name of the companion and which of the categories the companion fits into). In addition, ACAS have also updated their non-statutory guidance which accompanies the Code.
Employers may therefore wish to consider revising their policies to reflect the updated Code. However, it is worth bearing in mind that compensation for breach of the right set out in s.10 of the Employment Relations Act 1999 may be nominal where no loss or detriment has been suffered by the worker. For example, in Toal, when remitting the case back to the employment tribunal on this matter, the EAT hinted that the award should be £2 or “some other small sum”.
