Acas has amended the guidance within its Disciplinary and Grievance Procedures Code of Practice in relation to the right to be accompanied at a disciplinary of grievance hearing.
Previously, the Code indicated that an employer could refuse the employee’s choice of who they wanted to be accompanied by on the grounds that their request was not reasonable e.g. that the desired companion would prejudice the hearing or that they were located on a geographically remote site and there was someone else available at the same site.
However, an Employment Appeal Tribunal (EAT) judgment in 2013 prompted Acas to revisit their guidance. The EAT said that, provided the desired companion fell into one of the permitted categories (colleague or trade union representative), then the employer could not say no.
The Code of Practice has now been amended to reflect this. Whilst it says that workers should bear in mind the practicalities of having their desired companion, it says that the employer “must allow” the worker to be accompanied by who they want provided the companion falls into one of the categories permitted by the Employment Relations Act 1999.
The Code confirms that a request must still be reasonable but it is clear not that the choice of the companion must not be considered when assessing whether the request is ‘reasonable’. Although the request need not be made in writing nor in a particular timescale, the Code indicates that the worker should provide enough time for the employer to deal with the companion’s attendance at the meeting.
The maximum tribunal award for a worker who has had their right to be accompanied breached is two weeks’ pay (subject to a cap of £928 which will increase to £950 in April). However, the award must reflect the loss/detriment suffered by the claimant so two weeks’ pay should be seen as a maximum and not a minimum.
For more guidance on the right to be accompanied, please call our 24 Hour Advice Service on 0844 892 2772 and choose option 1.