The law provides that Acas, the conciliation and arbitration service, can publish Codes of Practice containing practical guidance in order to promote the improvement in industrial relations. The Codes have to be approved by both the Secretary of State and Parliament. One such Code is the ACAS Code of Practice on Disciplinary and Grievance procedures.

An amendment to the Code regarding the statutory right for workers to be accompanied at disciplinary and grievance hearings was laid before Parliament on 15 January 2015. The Code was amended following the decision by the Employment Appeal Tribunal (EAT) in Toal and Hughes v GB Oils Ltd (weekly LELR 332), brought by Unite the Union which instructed Thompsons to act on behalf of its members. The case considered the extent of the worker’s right to choose who he or she can bring with them to grievance or disciplinary hearings.

Section 10 of the Employment Relations Act 1999 states that the statutory right to be accompanied applies where a worker is invited to attend a grievance or disciplinary hearing and reasonably requests to be accompanied at that meeting, the employer must allow the worker to be accompanied by their chosen companion. The companion must be a trade union official, certified union representative or fellow worker. In the Unite case, Mr Toal and Mr Hughes were invited to a meeting to hear their complaints. They both expressed a wish to their statutory right to be accompanied at the meeting by an elected union official who was certified by Unite under section 10(3) of the Act.

However, their employer refused their request so they asked if a fellow worker could attend. This was agreed. When their grievances were rejected, they appealed and were accompanied by another elected Unite official. The men then brought claims that their employer was in breach of section 10 by refusing to allow their first chosen representative to accompany them.

The EAT rejected the 'employer's’ argument that the requirement to make a reasonable request meant that the companion had to be reasonable. The employer relied on the ACAS Code of Practice in support. In particular, the Code stated that “…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 on site.” The EAT held that workers had the right to be accompanied at these hearings by a companion of their choice as long as they were from one of the categories listed in section 10(3) of the Employment Relations Act. There was no need to take into account what the ACAS Code said.

In light of the EAT’s decision Acas launched a public consultation on the draft revisions to the sections on the right to be accompanied which ended a year ago on 7 January 2014. Although the draft revised Code is subject to parliamentary approval it is likely that it will state employers must agree to a workers right to be accompanied by any companion from one of the categories.

Jo Seery, of Thompsons Solicitors, commented: “The right of the worker to choose their companion is an important right which cannot be vetoed by the employer. A revision to the Code which makes this clear is welcome.”