Employment Review: May 2015 – Right to be accompanied – is the companion on the guest list?
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 EAT’s decision in the recent case of Toal v GB Oils Ltd and the newly revised ACAS Code on disciplinary and grievance procedures have changed that position.
The main issue before the EAT was whether a worker’s choice of companion had to be reasonable. The EAT has held that the worker has an absolute right to choose a companion provided that they fall within one of the prescribed categories. The reasonableness test applies 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 weeks’ pay subject to the statutory cap. Secondly, if the matter escalates to Tribunal litigation, the worker can 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 able to advise on this.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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