Acas is seeking views on a specific change to the Code relating to the legal right workers have to be accompanied at a disciplinary or grievance hearing. This change comes as a result of the recent Employment Appeal Tribunal decision in the case of Toal and anor v GB Oils. The decision concerned the right to be accompanied in disciplinary and grievance hearings and suggested that the Acas Code did not accurately reflect the law on the right to be accompanied and in particular the law relating to the need to make a ‘reasonable’ request. Acas state that the current wording does not accurately interpret the law, which is why they have decided to amend the Code.
In the Toal case, the EAT rejected the employer’s argument that the word “reasonable” applies to the choice of companion as well as the request to be accompanied. The employer relied on Paragraph 36 of the Code which states that “it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing.” The EAT held that an Acas code of practice is not an aid to the construction of the law and the guidance could not be accepted. S.10 of the Employment Relations Act 1999, which sets out the right to accompaniment, makes no mention that the choice of companion must be reasonable and in any event, there is no standard by which reasonableness could be judged.
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