Acas revises wording in Code on accompaniment to hearings in light of EAT judgment

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Following consultation, Acas has made a small revision to the Code of Practice on disciplinary and grievance procedures to take into account of the EAT decision in the case of Toal. v GB Oils on the right of accompaniment to disciplinary and grievance hearings.

In the Toal case the EAT held that under the right to be accompanied in S.10 of the Employment Relations Act 1999, where a worker reasonably requests to be accompanied at the hearing” the word “reasonably” did not extend to the workers choice of companion, which the Code appeared to suggest was the case.

Acas publishes consultation response on Discipline & Grievance Code – Friday 16 January 2015

New draft Code revises wording on accompaniment to hearings in light of EAT judgment

Workplace expert Acas has today published the results of its consultation on a small revision to the Code of Practice on disciplinary and grievance procedures.

A judgment made by the Employment Appeal Tribunal (EAT) clarified the rules around the types of companions that workers can bring with them to grievance or disciplinary hearings. It found that workers had the right to be accompanied at these hearings by any companion as long as they are from one of the categories listed in section 10 of the Employment Relations Act 1999. These include trade unions officials, certified union representatives or fellow workers.

Acas launched a public consultation on the draft revisions made to the right of accompaniment sections in its disciplinary and grievance code following the EATs judgment. The results of this consultation have been published today alongside a revised draft of the Code. The draft Code is now subject to parliamentary approval.

Anne Sharp, Acas Chief Executive, said:

“Our Code is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace.”

“Following the valuable responses received from our consultation, the Code has now been updated to take into account the EAT decision in the case of Toal v GB Oils on the right of accompaniment to disciplinary and grievance hearings.”

The consultation closed on 7 January 2014 and Acas sent the final version of the draft Code to the Department for Business, Innovation and Skills (BIS) on 7 February 2014. BIS laid the new Code in Parliament on 15 January 2015.

  1. The new Code of Practice on disciplinary and grievance procedures is draft until it has been finalised through a parliamentary process that started on 9 January 2015.
  2. The revisions were made to take account of the Employment Appeal Tribunal (EAT) decision in the case of Toal and another V GB Oils. The decision concerned the right to be accompanied in disciplinary and grievance hearings.
  3. Acas has specifically inserted new paragraphs 14-16 and 36-38 in the discipline and grievance accompaniment sections of the Code following the consultation. These paragraphs now say:

The statutory right is to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker, Employers must agree to a workers request to be accompanied by any companion from one of these categories. Workers may also alter their choice of companion if they wish. As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements. For instance, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location. To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. A request to be accompanied does not have to be in writing or within a certain time frame. However, a worker should provide enough time for the employer to deal with the companion’s attendance at the meeting. Workers should also consider how they make their request so that it is clearly understood, for instance by letting the employer know in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative. If a workers chosen companion will not be available at the time proposed for the hearing by the employer, the employer must postpone the hearing to a time proposed by the worker provided that the alternative time is both reasonable and not more than five working days after the date originally proposed.

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