S.10(1) of the Employment Relations Act 1999 gives a worker the right to reasonably request to be accompanied at a disciplinary or grievance hearing. S.10(3) lists the categories of permitted companions, which includes a trade union official. In Toal and another v GB Oils Ltd, the employer refused a request from Toal and Hughes to be accompanied by Lean, a trade union official, at a grievance hearing. The employer refused the request for Lean, but did permit a work colleague and another trade union official to act as companions. A tribunal rejected Toal and Hughes’ claims for failure to permit them to be accompanied by their chosen companion because they had waived their right to be accompanied by Lean when they accepted the other companions.
Toal and Hughes appealed arguing that it was not open to the tribunal to find that they had waived their right to be accompanied by Lean. The EAT agreed with them and in doing so, it rejected the employer’s argument that the word “reasonably” applies to the choice of companion as well as the request to be accompanied. The employer based its argument on Para.36 of the Acas code of practice on disciplinary and grievance procedures 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.” But the EAT held that an Acas code of practice is not an aid to the construction of a statute and could not be accepted, as there is no standard available to judge reasonableness. Therefore, there is no requirement for a request to be accompanied by a particular companion to be reasonable, provided the companion is within one of permitted categories, and clearly Lean was such a person.
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