March 25, 2015
Important changes to an Acas Code of Practice
Are you currently dealing with a disciplinary or grievance within your organisation?
If so, you need to be aware that Acas has made some small changes to its Code of Practice on Disciplinary and Grievance Procedures which clarifies if workers have the right to be accompanied by a companion at a disciplinary or grievance hearing.
The revised Code came into force on 11 March 2015 and is available for download fromhttp://www.acas.org.uk/dgcode
The revisions were made following a judgement by the Employment Appeal Tribunal (EAT) which clarified the rules on making requests to be accompanied at grievance or disciplinary hearings.
The case (Toal v GB Oils) arose because at a grievance hearing the employer refused the Claimant his choice of companion, a Trade Union official.
A substitute official accompanied the Claimant. The Employment Tribunal held that the Claimant had waived the breach of his right to be accompanied by choosing another companion.
This decision was overturned by the EAT. The right to a companion is limited only to the categories set out in s.10(3) Employment Relations Act 1999, and within that may be whoever the worker wishes.
What has changed?
Workers will now have a statutory right to be accompanied by a companion where the disciplinary meeting could result in a formal warning being issued, the taking of some other disciplinary action, the confirmation of a warning or some other disciplinary action (such as appeal hearings).
The statutory right is to be accompanied by a fellow worker, trade union representative or an official employed by a trade union.
If the person is in the correct category, the employee has an absolute right to choose who they are to be accompanied by, provided that the request itself is reasonable and in most cases it will be. The ‘reasonableness’ test does not apply to the choice of companion.
It should be noted that there is absolutely nothing to prevent an employer allowing an employee to be accompanied by somebody who sits outside of this definition, such as parent or partner, and in fact in cases where the individual suffers from a disability, this might well constitute a ‘reasonable adjustment’ in certain circumstances.
What if I don’t follow the Code?
A failure to follow the Code does not, in itself, make a person or organisation liable to proceedings. However, Employment Tribunals will take the Code into account when considering relevant cases. It is therefore advisable that all employers are familiar with the Code and what it advises is best practice in matter relating to discipline and grievance procedures.
Where an Employment Tribunal finds in favour of a Claimant in a relevant case, and there has been an unreasonable failure to adhere to the Code, then an Employment Tribunal has the power to increase any award of compensation by up to 25%. It is therefore potentially very important, not only in terms of getting things right in the first place, but also in terms of the potential costs should the matter end up in an Employment Tribunal.
What other considerations are important?
One matter relating to the Code which is often the cause of tension is the employee’s right to be accompanied.
It was this issue of reasonableness, and the apparent confusion in the previous Code of Practice that had led to this amendment.
It should also be noted that where the original companion can no longer make the hearing, employees have the right to change their companion if they need to. Where the employee’s chosen companion is not available, the employer must postpone the hearing to a time proposed by the employee, provided that the new time is both reasonable and not more than five working days after the original date.
Surprisingly, there is no requirement for requests to be accompanied to be in writing.
This is a relatively minor amendment to the Code, but given the fundamental nature of the right to be accompanied, along with other rights enshrined in the Code, employers are encouraged to become familiar with it or at the very least, contact Moorepay for advice on matters relating to best practice.
Need advice on this subject? Why not contact us and find out how we could help?
By Stuart Morle