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Proposed amendments to the Acas Code of Practice on Disciplinary and Grievance Procedures
Will proposed amendments to the Acas Code of Practice on Disciplinary and Grievance Procedures make it sufficiently clear that workers will have a right to choose their companion—within a defined category? Tim Lang, employment partner at George Green LLP, comments on the proposals and says the revised Code is unlikely to change practice to any meaningful degree.
Analysis
The Advisory, Conciliation and Arbitration Service (Acas) is seeking views on a change to the wording of the Code of Practice on Discipline and Grievance procedures relating to the legal right of workers to be accompanied at a disciplinary or grievance hearing. The change comes as a result of an Employment Appeal Tribunal (EAT) hearing earlier in 2013, which suggested the Code did not accurately reflect the law on the statutory right of accompaniment.
What is the recent case law that prompted the release of this Acas Code?
This was the Employment Appeal Tribunal (EAT) decision in Toal & Hughes v GB Oils Ltd Both claimants had raised grievances and had told their employer that they wished to be accompanied by an elected official of Unite at the grievance meetings. In each case the employer declined to allow the claimant to be accompanied by the particular official. The claimants therefore asked a fellow worker to accompany them to the grievance meetings. They appealed against the outcome of the grievances and were allowed to have a different elected union official accompany them at the appeal hearings.
The statutory right to be accompanied is set out in the Employment Relations Act 1999 section 10. At first instance the Employment Tribunal (ET) found that ERA placed a mandatory obligation on the employer to allow the worker to be accompanied by the companion chosen by the worker and the EAT agreed.
What are the rights of employees in relation to being accompanied?
S10 ERA provides that the worker can be accompanied by another worker, a paid trade union (TU) official or an unpaid official of a TU who has been certified by a TU where a worker:
• is required or invited by his employer to attend a disciplinary or grievance hearing, and
• reasonably requests to be accompanied at the hearing
How does this Code change practice?
The employer argued that the word ‘reasonably’ qualified not only the request to be accompanied but also the identity of the proposed companion, and relied upon the Acas Code of Practice issued in 2009.
The Code (at para 36) read: ‘To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However 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’.
The EAT found that para 36 of the Code was not an available aid to construction of the statute which was perfectly clear. The decision has prompted Acas to seek to amend the 2009 Code.
Acas proposes that para 36 will now read as follows (and para 15 which relates to disciplinary hearings):
‘To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case, and the workers are free to choose any fellow worker, trade union representative or official as set out in para 14 (or para 35) as a companion. In making their choice, however, workers should bear in mind the practicality of the arrangements. Thus it may neither be sensible nor helpful to request accompaniment by a colleague from a geographically remote location when someone suitably qualified is available on site; nor to be accompanied by a colleague whose presence might prejudice the hearing or whom might have a conflict of interest. The request to be accompanied does not have to be in writing or within a certain timeframe but workers should consider how they make their request so that it is clearly understood and provides enough time for it to be considered by their employer.’
Acas says the revised wording makes it clear that workers have the right to choose whoever they like to act as a companion and also attempts to give some guidance on what is meant by the ERA 1999 reference to ‘making a reasonable request’ by including some indication of the manner in which requests to be accompanied might be made.
Under what circumstances can a request to be accompanied be refused?
As the ET and the EAT both found, it cannot be refused if it is a reasonable request. As Acas says, the request might not be reasonable if, for example, it cannot be clearly understood or does not provide enough time for it to be considered by the employer.
How will this impact on discipline and grievance proceedings?
The revised Code is unlikely to change practice to any meaningful degree. Employers who are concerned about a companion will have been given comfort by the EAT which stated that while the ERA requires a tribunal to order an unsuccessful employer in relation to complaints under s10 to pay compensation of an amount not exceeding two weeks’ pay, the tribunal must go on to assess the loss or detriment suffered by the employee in question. If the employee suffered no loss or detriment then it might only award nominal compensation in the order of £2.00 or some other small sum.
Could there be unintended consequences?
This part of the decision might encourage employers to be more ‘gung-ho’ about refusing to allow a particular companion. If they are concerned about a proposed companion they might decide to decline to allow that companion to attend and instead allow an alternative to attend in the knowledge that they will have arguments that the employee has suffered no loss or detriment and should be awarded only a nominal sum.