Author: Mike Tremeer
An employee has asked to be accompanied to a grievance meeting by a disruptive colleague. Can we refuse?
Not without breaching the ACAS Code of Practice on disciplinary and grievance procedures (ACAS Code).
The Employment Relations Act 1999 confirms that employees are entitled to be accompanied to certain formal meetings by a work colleague, a trade union representative or an official employed by a trade union. Employees are not, therefore, permitted to be accompanied to meetings by a family member or friend – which is a common request faced by employers. However, the question raised above has previously proved more of a grey area for practitioners.
The ACAS Code currently states that “to exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing…”
For many years employers have relied on this wording to object to particularly disruptive companions attending meetings. The EAT judgment in Toal and another v GB Oils Ltd made it clear that the ACAS Code cannot be used to support this approach, and has led to draft changes being made to the ACAS Code.
In Toal, two employees raised grievances against their employer and asked to be accompanied to their grievance meetings by a particular trade union official. The employer refused (for reasons that are not clear from the EAT judgment, but are presumably related to some history with the chosen official).
The EAT found that the concept of “reasonableness” in this context applied to the request to be accompanied to the meeting – not the identity of the employee’s chosen companion. For example, it may not be reasonable to request that a colleague based overseas attend the meeting at the employer’s expense. But if the request was otherwise reasonable, the employee’s ability to choose their companion should be absolute (provided that they fall within one of the specified categories). This has led to ACAS separating the language currently used in the ACAS Code into several paragraphs, to make this distinction clear.
The stand-alone penalties for employers who breach the right to be accompanied to formal meetings are relatively limited; an employee may be able to claim up to two weeks’ pay (currently capped at £464 per week) if they can demonstrate that they have suffered a detriment.
But keep in mind the wider effect that breaching the ACAS Code could have in employment tribunal claims – particularly dismissal related claims. Any failure to follow the ACAS Code can be taken into account by a tribunal when considering if a dismissal was fair or unfair, and any compensation awarded to employees can be increased by up to 25% if the employer is found to have breached it.
There may be employers who will remain willing to take this risk in order to avoid the additional problems caused by a troublesome companion attending meetings. The changes to be made to the ACAS Code will increase this risk however, and this should be weighed against the damage that the individual in question could cause.
Mike Tremeer, Senior Associate, Fladgate LLP (firstname.lastname@example.org)