We all know that employees have a right to be accompanied in disciplinary hearings. However, a recent Personnel Today article points to two cases that show that the legislation isn’t always straightforward.
In Toal v GB Oils Ltd, two employees raised grievances and asked to be accompanied by a specific trade union official. The employer refused to allow this, resulting in the employees being accompanied by a work colleague at the grievance meeting and a different union official at the appeal. The EAT found that employees had a clear right to choose their companion subject only to the qualifying criteria in the legislation. In other words, while the request has to be reasonable, the employer has no say over the reasonableness of the choice of companion.
In light of this decision, ACAS will now revise its Code of Practice, which suggests that the choice of companion has to be reasonable.
In Shone v Oxford & Cherwell Valley College, the employer had more success. The employee was informed that his employment might be terminated at a probationary review meeting scheduled for the last day before the Christmas holidays. He tried and failed to have the meeting rescheduled until after Christmas and then emailed 11 minutes before the meeting to say that he could not find a representative. The employer refused to reschedule, stating that the employee had made the request at the last minute. The tribunal agreed that the request was not reasonable.
The decision in the first case is binding so companies should note that they don’t have the right to veto the choice of companion in discipline and grievance meetings. However, it may be helpful for organisations to know that the EAT suggested that compensation should probably be nominal or, failing that, the likely maximum penalty of two weeks’ wages (currently £900). However, it is important to see the revisions to the ACAS Code of Practice as failure to comply with it may lead to compensation being increased by up to 25%.
You can read the full article here: When is a request to be accompanied at a disciplinary meeting reasonable?
