Following a recent court ruling, ACAS is re-writing its code on who may accompany an employee at a grievance hearing. The new Code will severely limit employers’ rights to say a proposed employee companion at a grievance hearing is unsuitable. It is not yet clear whether the new Code will apply to disciplinary hearings as well.
Employees have a legal right to be accompanied at grievance or disciplinary hearings.
Under the law, an employee must “reasonably” request to be accompanied at a disciplinary or grievance hearing, either by a work colleague, a trade union official or a certified union representative. But the definition of “reasonable”, as always in law, is a grey area and in this case, even what “reasonable” applies to was in doubt.
The current ACAS Code allows employers to refuse an employee’s choice of companion at a grievance hearing if his or her presence would prejudice the hearing or if he or she is from a remote location if someone suitable is available on site.
A recent hearing in Court ruled that, even though the employer had followed the ACAS Code in saying that the employee’s choice of companion was unreasonable, the law did not in fact allow the employer to do this – and so the ACAS Code was wrong. The Court determined that a “reasonable” request is one that complies with the law, and the employer’s view about whether the proposed companion is a “reasonable” choice is irrelevant.
ACAS will re-write the Code to make it clear that an employee’s choice of companion does not have to be “reasonable” – as long as the companion is either a work colleague or a trade union officer, he or she should be allowed to accompany the employee at the grievance hearing.
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