Between a rock and a hard place? ACAS to amend code on right to be accompanied

In July, the Employment Appeal Tribunal (EAT) in Toal v GB Oils Ltd came to the unexpected conclusion that an employee’s choice of companion for a disciplinary or grievance hearing does not need to be ‘reasonable’ but suggested that any compensation for a breach of statutory rights on this basis should be nominal (£2 was mentioned).

The legislation says that the employee can choose a companion as long as certain requirements as to the identity of the companion are fulfilled (they must be an employee or a union official or certified by the union as having experience or training in acting as a companion).

Although the ACAS Code of Practice on disciplinary and grievance procedures suggests that there may be circumstances in which it will not be ‘reasonable’ to request a particular companion (for example, the code says it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing or by a companion from a remote geographical location if someone suitable and willing was available on site), the EAT in Toal decided that the legislation was clear and therefore the code was not relevant. The employer had breached the employee’s rights by refusing to allow him to be accompanied by the employee of his choice…

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