ACAS has recently opened a consultation to revise the Code of Practice on Disciplinary and Grievance Procedures after it was suggested that the Code did not accurately reflect the law on the right to be accompanied in disciplinary and grievance hearings, and in particular the law relating to the need to make a reasonable request.
The consultation, which is due to close on 7 January 2014 looks closely at section 10 of the Employment Relations Act 1999 (ERelA) which states that workers have a right to be accompanied at a disciplinary or grievance hearing where they are invited to such a hearing and make a reasonable request.
The Act does not specify what constitutes a ‘reasonable request’ and the views of ACAS and the EAT have differed.
ACAS states in its Code of Practice that it would not normally be reasonable for a worker to insist on being accompanied by a companion who would have to come from a remote geographical location if someone suitable and willing was available on site, or whose presence would prejudice the hearing.
However, the EAT has stated that if a worker has been invited to a disciplinary or grievance hearing then provided that he or she has made a reasonable request to be accompanied at the hearing, the worker has the right to choose whoever he or she likes as a companion – so long as the companion is from one of the categories set out in section 10 of the ErelA (i.e. a trade union representative or a fellow worker).
The proposed changes to the Code support the view of the EAT. The ‘good practice’ point that workers should have some regard to the effect that their choice of companion will have on the disciplinary or grievance process itself will be retained. ACAS feels that this is important to discourage requests for accompaniment that may disrupt the process and may not actually be in the worker’s own best interests.
The revised wording also attempts to clarify what might be meant by the Act’s reference to ‘making a reasonable request’ by including some guidance on the manner in which requests to be accompanied might be made.
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