An Objectionable Companion?
When workers choose companions to accompany them to a grievance hearing, employers have tended to assume that they can decide whether the person chosen is reasonable – at least that is what the Acas Code of Practice on Disciplinary and Grievance Procedures grievances suggests. However a recent Employment Appeal Tribunal case has revealed that this is not legal.
Workers have the right to ‘reasonably request to be accompanied at a disciplinary or grievance hearing’ under Section 10(1) of the Employment Relations Act 1999 (ERA). It goes on to explain that the employee can ask for a trade union official or fellow worker to accompany them during the hearing. Unfortunately the Acas Code of Practice applied the word “reasonable” to the choice of companion as well as the right to have one. In fact for some years, employers have relied on the Code’s guidance that, “It would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing’ in determining who may be allowed to accompany the employee.
The Employment Appeal Tribunal confirmed that is not possible for a Code of Practice to interpret the law or plug any perceived gaps that the legislation has left. This means that as long as the chosen companion comes within one of the permitted categories, then there can be no interference with the worker’s choice. It may lead to some awkward hearings!
Posted on 19 Nov 2016