Moreover it has statutory effect and Tribunals are required to have regard to it when dealing with claims to which it applies. Employers who are found to have unreasonably failed to follow the Code, may face an increase of up to 25% in any compensation which an Employment Tribunal has ordered is payable. Therefore, as the consequences of failing to follow the Code can be serious, it is important that the Code itself is an accurate reflection of the law.
Section 10 of the Employment Relations Act 1999 (the "1999 Act") provides that where an employee is invited to a grievance or disciplinary hearing and reasonably requests to be accompanied at that hearing, they must be allowed such a companion. The companion can be either be a Trade Union representative or official or a colleague (the "approved companions"). In Toal and another v GB Oils Ltd the Employment Appeal Tribunal (the "EAT") made clear that employees' have an unfettered right to choose one of the approved companions and this right is not subject to any test of reasonableness; instead it is the request which must be reasonable under the 1999 Act.
Following this decision Acas launched a consultation, in December 2013, into changes to those parts of the Code which deal with employees being accompanied to grievance and disciplinary hearings. Currently the Code reflects the view which existed, prior to Toal and another, that an employee's choice of companion should be reasonable. The results of the consultation were published on 16 January 2015, together with a draft revised Code. The revised Code inserts new paragraphs 14 to 16 regarding disciplinary hearings and 36 to 38 in relation to grievance hearings, to ensure the Code reflects the law following Toal and another. The new paragraphs can be read here.
In the new draft Code, whom the employee can choose as a companion and how to make a reasonable request are dealt with in separate paragraphs to highlight that they are separate points. In addition the new draft Code expressly provides that an employer must allow an employee to be accompanied by one of the approved companions. The guidance also now provides that "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". Further the Code has been revised so it states that:
- an employee may alter their choice of companion if they wish;
- what amounts to a reasonable request will depend on the circumstances of each individual case. However a request to be accompanied does not have to be in writing or within a certain time frame, albeit a worker should provide enough time for the employer to deal with the companion's attendance at the meeting;
- a worker should provide their employer with the name of the companion where possible and specify whether it is a fellow worker, trade union representative or official in order to ensure their request is properly understood; and
- 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.
The new draft Code was put before Parliament on 15 January 2015 and now awaits its approval. The practical effect of this amendment is arguably small for employees because in Toal and another, the EAT found that where the right under section 10 of the 1999 Act had been breached but the employee had suffered no loss or detriment, only a nominal award of compensation would be made.
In addition to amending the Code, Acas have also amended their non-statutory guidance on Discipline and Grievances at work to provide that employers may, if they wish, allow an employee to be accompanied by someone other than one of the approved companions.