There are many examples of why limits on the choice of companions are needed to avoid unfairness or, indeed, simply unworkable disciplinary processes. But as the Toal decision held, the current legislation underpinning the right to be accompanied does not allow scope for such restrictions.
The consultation proposed draft new guidance, on which there were a number of comments submitted, mainly all aimed at seeking to ensure that the law in this area is now explained as clearly as possible. These have largely been accepted by ACAS, although it has confirmed that it still wishes to provide practical guidance that goes beyond a simple statement of the legal requirement.
The updated language which will be included in the Code when formally approved by Parliament is shown below:
13. Workers have a statutory right to be accompanied by a companion where the disciplinary meeting could result in:
- a formal warning being issued; or
- the taking of some other disciplinary action; or
- the confirmation of a warning or some other disciplinary action (appeal hearings).
14. The statutory right is to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker. Employers must agree to a worker’s request to be accompanied by any companion from one of these categories. Workers may also alter their choice of companion if they wish. As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements. For instance, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location.
15. To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. A request to be accompanied does not have to be in writing or within a certain time frame. However, a worker should provide enough time for the employer to deal with the companion’s attendance at the meeting. Workers should also consider how they make their request so that it is clearly understood, for instance by letting the employer know in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative.
16. If a worker’s chosen companion will not be available at the time proposed for the hearing by the employer, the employer must postpone the hearing to a time proposed by the worker provided that the alternative time is both reasonable and not more than five working days after the date originally proposed.
17. The companion should be allowed to address the hearing to put and sum up the worker’s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker’s behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case.
Vince Cable has indicated that the ACAS Code of Practice on Disciplinary and Grievance Procedures may be reviewed as a whole, given the time which has passed since it was first drafted. However, it seems that the separate strong argument for a review of the underlying legislation on which the Toal decision is based will need to await consideration by a new government.