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ACAS Publishes New Code Clarifying Who Can Accompany Workers at Grievance or Disciplinary Hearings

With the Employment Appeal Tribunal (EAT) having recently clarified the rules concerning the types of companions that workers can bring with them to grievance or disciplinary hearings, following a period of consultation, ACAS has now published a revised draft of the of Practice on Disciplinary and Grievance Procedures.

The EAT judgement in  Toal and another -v- GB Oils, which caused ACAS to act, held that workers have the right to be accompanied anyone at Disciplinary and Grievance hearings, provided the accompanying individual falls into one of the categories, which are listed in section 10 of the Employment Relations Act 1999. Workers, therefore, have the right to be accompanied at such hearings by trade unions officials, certified union representatives and fellow workers.

With regards to the specifics of the changes, ACAS inserted new paragraphs 14-16 and 36-38 into the discipline and grievance accompaniment sections of the Code, which now reads:

“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 worker’s 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 knows in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative.”

“If a worker’s 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.”

In addition to the revised draft of the Code, which is subject to parliamentary approval, ACAS has published the results of the aforementioned consultation, which closed on 7 January 2014.

Commenting on the new code, Acas Chief Executive, Anne Sharp, stated:

“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.”

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