The Acas Code of Practice on Disciplinary and Grievance procedures has now been amended to reflect the absolute right of an employee to request to be accompanied by a specific colleague or trade union representative provided that request is itself reasonable.
The Employment Relations Act 1999 provides that where a worker is required to attend a disciplinary or grievance hearing and “reasonably requests to be accompanied at the
hearing” they are entitled to be accompanied by either a trade union representative or a colleague. In August 2014, the Employment Appeal Tribunal in Toal v GB Oils clarified that this did not mean that the employee’s choice of such a companion needed to be
reasonable, but merely that the request to be accompanied needed to be reasonable.
Provided that the companion was a trade union representative or colleague, the
choice of the companion was completely up to the employee and the employer
could not interfere.
Prior to this judgment, the Acas Code had stated that “it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing”. As a result of the Toal case, the Acas Code has now been amended to state that “employers must agree to a worker’s request to be accompanied by any companion” who is a colleague or trade union representative.
Provided that a request to be accompanied is reasonable (which will depend on the circumstances of the case), employers will need to comply with a request to be accompanied by a specific colleague or trade union representative.
The Code suggests, for example, that the worker should let the employer know in
advance the name of the companion and whether they are a fellow worker or trade
union official or representative. It also gives good practice points that the worker should have regard to the effect that their choice of companion will have on the process.