Changes to the right to be accompanied at disciplinary and g

[TrueBlueTerrier]

Changes to the right to be accompanied at disciplinary and grievance hearings

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ACAS has changed its Code of Practice on Disciplinary and Grievance Procedures (the “ACAS Code”).

The change is prompted by the Employment Appeal Tribunal’s ruling in the case of Toal and anor GB Oils (http://www.bailii.org/uk/cases/UKEAT/20 ... _2205.html" onclick="window.open(this.href);return false;) which suggested that the ACAS Code did not accurately reflect the law on the statutory right to be accompanied.

Section 10 of the Employment Rights Act 1999 (the “Act”) states that workers have a right to be accompanied if they make a reasonable request. A “reasonable request” is not defined in the Act but the old ACAS Code stated that it would not normally be reasonable for a worker to insist on being accompanied by a companion who would have come from a remote geographical location if someone suitable and willing was on site, or whose presence would prejudice the hearing.

The EAT’s decided in Toal and anor GB Oils that if a worker had made a reasonable request to be accompanied at the hearing they have the right to be accompanied by whoever they like provided that they are a fellow worker, a person employed by a trade union or a trade union representative. ACAS launched a consultation and has now decided to amend the ACAS Code to take into account the EAT’s ruling.

The revised ACAS Code includes the following changes:

employers must agree to a worker’s request to be accompanied by any chosen companion from one of the statutory categories of companion;
a worker may alter their choice of companion if they wish;
as a matter of good practice workers should bear in mind practicalities. For instance, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone at a geographically remote location;
to exercise the right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. A reasonable request would be one that provides sufficient information and time to allow the employer to deal with the practicalities of the companion’s attendance at the hearing;
a worker should ensure that their request is clearly understood, for example by providing the name of the companion where possible; explaining whether they are a fellow worker, trade union representative or trade union official and giving the employer time to make the necessary arrangements to allow the chosen companion to attend. A request to be accompanied does not have to be in writing or made within a particular time frame; and
if a worker’s chosen companion is not available the employer must postpone the hearing to a time proposed by the worker provided that the alternative time is reasonable and not more than five working days after the date originally proposed.

Comment: Grievance and disciplinary procedures should be checked and amended to ensure that they comply with the revised ACAS Code.

Coming up: Vince Cable announced in January that BIS had made a request to ACAS for a wider consultation on the ACAS Code. This means that there are likely to be further changes to the ACAS Code. We will let you know as and when that happens.

[Himaggen]

All seemed good until i read this!

if a worker’s chosen companion is not available the employer must postpone the hearing to a time proposed by the worker provided that the alternative time is reasonable and not more than five working days after the date originally proposed.

My experience is that an area, or adjacent local Rep, cannot be arranged to attend within that five day period and that most disciplinaries appear to occur during local Rep's annual leave.