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Right to be Accompanied – ACAS Code to be amended

FG Solicitors - Right to be accompaniedSUMMARY: An Employment Appeal Tribunal has held that the choice of companion is absolute when an employee has the right to be accompanied and, subject to the companion being a fellow worker or trade union official, does not need to be reasonable.  The ACAS Code will be amended accordingly.

Legal Background

Most employers are aware that employees have the right to be accompanied by a fellow worker or trade union official at a disciplinary or grievance meeting.

The ACAS Code currently suggests that it would not be reasonable for an employee to be accompanied by a companion whose presence would compromise the hearing or who was based in a remote geographical location.

However, the ACAS Code does not have statutory force.  It is the wording of the legislation that should always take precedence as can be seen by this case.

Facts of this case

The employees requested to be accompanied by Mr L, a union official, at a grievance meeting.  The employer refused the request, so they were accompanied by a different companion at the meeting.

The employees subsequently brought claims that their right to be accompanied had been breached.

The Employment Appeal Tribunal’s (EAT) decision

The EAT, overturning the Employment Tribunal’s decision, held that the employees could not waive their right to be accompanied and that they had an absolute right to choose their companion, so long as the companion was a trade union official or fellow worker.  By not permitting the employees to be accompanied by their choice of companion, the employer had breached their rights which were set out in legislation.  This was the case even though the employees had agreed to be accompanied by a different companion and despite the ACAS Code indicating that there were circumstances in which an employer could reject an employee’s choice of companion due to unreasonableness.

The EAT however considered that the effect of the breach was minimal and that compensation should reflect this; it suggested that the employees could be awarded a nominal sum of around £2.  The legislation states that a failure to allow a worker to be accompanied attracts an award of compensation of up to 2 weeks’ pay (which is currently capped at £450 per week).  It will be for the Employment Tribunal to decide the exact amount of compensation on the above facts.

Subsequently, ACAS has announced that it intends to amend the ACAS Code to reflect the EAT’s decision.

What does this mean for employers?

Employers should always ensure that they permit employees to be accompanied at grievance or disciplinary meetings by their choice of companion, so long as the companion is a trade union official or fellow worker.  If the companion may prejudice the hearing, employers should not generally insist on the employee having a different companion.

Employees have a free-standing right to bring a claim for a breach of their right to be accompanied.  However, given that the compensation for such claims is likely to be low, and that a tribunal fee will need to be paid before such a claim can be brought, such claims are likely to be an unattractive for most employees.  Employees may take their chances in rolling such a breach into a decision to bring a claim for unfair dismissal or constructive unfair dismissal instead, where the potential compensation awards are significantly higher.

We would therefore always advise taking legal advice if an employer is considering rejecting an employee’s choice of companion.

Case: Toal and another v GB Oils Ltd UKEAT/0569/12, 22 May 2013.

Contact Details

For more details about this case or the right to be accompanied please contact:

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice. 

Updated: by FG Solicitors
Call us on:  0808 172 93 22

RIGHT TO BE ACCOMPANIED – ACAS CODE TO BE AMENDED

FG Solicitors - Right to be accompaniedSUMMARY: An Employment Appeal Tribunal has held that the choice of companion is absolute when an employee has the right to be accompanied and, subject to the companion being a fellow worker or trade union official, does not need to be reasonable.  The ACAS Code will be amended accordingly.

Legal Background

Most employers are aware that employees have the right to be accompanied by a fellow worker or trade union official at a disciplinary or grievance meeting.

The ACAS Code currently suggests that it would not be reasonable for an employee to be accompanied by a companion whose presence would compromise the hearing or who was based in a remote geographical location.

However, the ACAS Code does not have statutory force.  It is the wording of the legislation that should always take precedence as can be seen by this case.

Facts of this case

The employees requested to be accompanied by Mr L, a union official, at a grievance meeting.  The employer refused the request, so they were accompanied by a different companion at the meeting.

The employees subsequently brought claims that their right to be accompanied had been breached.

The Employment Appeal Tribunal’s (EAT) decision

The EAT, overturning the Employment Tribunal’s decision, held that the employees could not waive their right to be accompanied and that they had an absolute right to choose their companion, so long as the companion was a trade union official or fellow worker.  By not permitting the employees to be accompanied by their choice of companion, the employer had breached their rights which were set out in legislation.  This was the case even though the employees had agreed to be accompanied by a different companion and despite the ACAS Code indicating that there were circumstances in which an employer could reject an employee’s choice of companion due to unreasonableness.

The EAT however considered that the effect of the breach was minimal and that compensation should reflect this; it suggested that the employees could be awarded a nominal sum of around £2.  The legislation states that a failure to allow a worker to be accompanied attracts an award of compensation of up to 2 weeks’ pay (which is currently capped at £450 per week).  It will be for the Employment Tribunal to decide the exact amount of compensation on the above facts.

Subsequently, ACAS has announced that it intends to amend the ACAS Code to reflect the EAT’s decision.

What does this mean for employers?

Employers should always ensure that they permit employees to be accompanied at grievance or disciplinary meetings by their choice of companion, so long as the companion is a trade union official or fellow worker.  If the companion may prejudice the hearing, employers should not generally insist on the employee having a different companion.

Employees have a free-standing right to bring a claim for a breach of their right to be accompanied.  However, given that the compensation for such claims is likely to be low, and that a tribunal fee will need to be paid before such a claim can be brought, such claims are likely to be an unattractive for most employees.  Employees may take their chances in rolling such a breach into a decision to bring a claim for unfair dismissal or constructive unfair dismissal instead, where the potential compensation awards are significantly higher.

We would therefore always advise taking legal advice if an employer is considering rejecting an employee’s choice of companion.

Case: Toal and another v GB Oils Ltd UKEAT/0569/12, 22 May 2013.

Contact Details

For more details about this case or the right to be accompanied please contact:

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.