The right to be accompanied to disciplinary and grievance hearings – a change in the law

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Posted in:HR and Employment|July 23, 2013 | Join the mailing list

Where a worker reasonably requests to be accompanied to a disciplinary or grievance hearing, their employer is required, under the Employment Relations Act 1999, to allow them to be accompanied by a "companion". The companion must be either
a fellow worker or a trade union representative and if he or she is a trade union representative, then they must either be employed by a trade union or must have been reasonably certified by their union as having experience of or as having received training
in acting as a companion at disciplinary or grievance hearings. It is irrelevant whether the trade union is recognised by the employer.

In order for the right to apply, the worker must reasonably request to be accompanied to the hearing and the ACAS code of practice on disciplinary and grievance procedures states that, for example, "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."

Up to now therefore, the law has been interpreted as meaning that in order for the statutory right to be accompanied to apply, the worker must choose a companion who it is reasonable to have at the hearing. To choose to be accompanied to a disciplinary hearing
into alleged bullying, for example, by someone who is also accused of the same bullying would probably not be reasonable and, so it appeared up to now, would not be in keeping with the statutory right.

However, in the recent case of Toal and another v GB Oils Limited, the Employment Appeal Tribunal has said that this interpretation of the law is not correct.

The EAT has said that the choice of companion by the worker does not have to be a reasonable one. The Employment Relations Act states that as long as the worker makes a reasonable request to be accompanied, then he or she is entitled to be accompanied by whoever
they want, provided that that companion is either a fellow worker or a trade union representative, as mentioned above.
Nigel Crebbin, partner in the employment law team at Berg, comments that this change in interpretation is one that employers need to be aware of.

"Up to now, employers have understandably referred to the ACAS code when considering whether to allow a worker to accompanied by their chosen companion and have understood the law to mean that the choice of companion must be a reasonable one. However, the EAT
has now said that the ACAS code is wrong on this point and that the reasonableness of the companion is irrelevant."

"Employers need to be alive to this, as refusing a request to be accompanied to a disciplinary hearing where the statutory right applies could have far reaching consequences. It could lead to any dismissal arising out of that hearing being considered by an
Employment Tribunal as being unfair."

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact Nigel Crebbin of the Berg Employment Team on 0161 833 9211 or email him at
nigelc@berg.co.uk.

Follow us at Twitter: #BergHR.

The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional
legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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