ACAS have announced that they will be amending their Code of Practice on Discipline and Grievances at work in light of the EAT decision in Toal and another v GB Oils Ltd.
GB Oils Ltd refused Mr Toal's request to be accompanied to a grievance hearing by a trade union official of his choice. Mr Toal was ultimately accompanied to his grievance hearing by another trade union official. However, he brought a claim arguing that GB Oils Ltd's refusal of his request was a breach of s.10 Employment Relations Act 1999 which provides that where a worker is required or invited to attend a disciplinary or grievance hearing and s/he reasonably requests to be accompanied to that hearing the employer must allow the worker to be accompanied by another of the employer's workers or a trade union official.
GB Oils Ltd argued that the worker's choice of companion had to be reasonable. It relied on the ACAS Code of Practice on Discipline and Grievances at work which stated that what is a reasonable request "depends on the circumstances of each individual case. It would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site".
The EAT disagreed and held that only the request to be accompanied has to be reasonable. Workers have an absolute right to choose their companion provided that s/he is another of the employer's workers or a trade union official. The EAT felt that it is easy to understand why Parliament would have legislated as it did, namely to prevent circumstances in which an employer might interfere with the exercise of the right to be accompanied without a proper reason in a manner that would put the worker at a disadvantage. However, the EAT did not address the point that there may be circumstances in which the worker's choice of companion could be unreasonable as set out in the ACAS Code. Employers faced with a worker who chooses another of their workers or a trade union official who they do not want to attend the disciplinary or grievance hearing will therefore have to accept the worker's choice of companion. However, it is important to note that this does not give the companion carte blanche to behave in an unreasonable manner at the hearing.