On 16 January ACAS published a draft revised Code of Practice on Disciplinary & Grievance procedures that contains new guidance relating to a worker’s right to be accompanied at Disciplinary and Grievance meetings.
Significantly, the draft Code suggests an employer must agree to a worker’s request to be accompanied by any chosen individual provided that they are a fellow worker, a trade union representative or a trade union official.
The relevant law is set out at Section 10 of the Employment Relations Act 1999 which places a condition on the worker’s right to be accompanied on the basis that the worker must “reasonably request” to be accompanied at any Disciplinary or Grievance hearing. Employers have for a long time interpreted the reasonableness condition to apply to the choice of companion as well as the manner in which the request is made. However, according to the new Code, the reasonableness condition only applies to the making of the request, not the choice of companion.
The revised Code is still awaiting Parliamentary approval but if these changes take effect, it could significantly change the dynamics of Disciplinary & Grievance hearings, particularly if, for example, a worker chooses a companion which the employer would rather not be present at the Disciplinary hearing for reasons of sensitivity or confidentiality. Likewise, if a worker chooses a companion who is employed on a different shift pattern to them, it will obviously give the worker an opportunity to delay arrangements for their hearings as well as causing other disruption for the business.
Interestingly, ACAS has also inserted guidance permitting workers to change their choice of companion if they wish and without waiving their right to change their choice again!