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Making a request to be accompanied
[ch 8: pages 56-57]The way the request is made must be “reasonable”. What is reasonable depends on individual circumstances, says the revised Code. The requirement to be “reasonable” does not relate to the choice of rep, which is an absolute right, as long as the rep is within one of the statutory categories.
An employee can simply inform their employer that they intend to bring a companion, and their identity. Putting the request in writing (for example, by email) is sensible.
There is no precise time frame for making the request, but leaving it to the last minute without good reason could lead to arguments that you are being unreasonable in the way you are making the request. Acas says “a worker should provide enough time to the employer to deal with the companion’s attendance at the meeting”. Workers should provide the name of the companion in advance where possible, says the Code, and should confirm whether they are a fellow worker, trade union official or rep.
The changes to the Acas Code follow two EAT rulings, Toal v GB Oils Limited [2013] UKEAT/0589/12/LA and Roberts v GB Oils Limited [2013] UKEAT/0177/13/DM:
Mr Toal raised a grievance with his employer and a meeting was arranged to consider it. He was refused permission to take his chosen companion, an elected Unite official. Since he wasn’t able to be accompanied by his companion of choice, he took with him a fellow worker on site and the meeting went ahead. He then brought a tribunal claim for breach of his statutory right to be accompanied.
The EAT confirmed that the employer had breached the statutory right and that the worker is free to choose their companion as long as they fall within one of the three statutory categories. There is no obligation on the worker to be “reasonable” as to the identity of their companion, said the EAT. The employer argued that Toal had waived his right to protest by letting the meeting go ahead with his second choice. The EAT disagreed: a worker can only ever agree to waive a statutory right in very limited circumstances, none of which applied here.
Toal v GB Oils Limited [2013] UKEAT/0589/12/LA
Where the chosen companion cannot attend a hearing date proposed by the employer, section 10(4)(5) ERA 99 says the worker can suggest an alternative meeting time that is “reasonable” and within five days of the original meeting date (see Chapter 7: Arranging for a companion).
The changes to the Code will help members who are put under pressure to accept a rep just because they are already on site, in place of another rep who is already familiar with the case.
As a general rule, Article 6 of the European Convention on Human Rights (the human right to a fair trial) does not entitle employees to be legally represented at internal disciplinary or grievance hearings (Re (G) v Governors of x School [2011] UKSC 30).
Occasionally, an employee has a contractual right to legal representation at internal hearings. This is unusual, especially outside the public sector.
The law does not require a union rep to accompany a member who asks to be accompanied. A member should not pressurise a union rep to attend a meeting. Similarly, work colleagues are entitled to act as companions on request, but they are not legally obliged to do so, and they should not be pressurised into this.