You can have any representative* (*as long as I approve them)
A worker’s statutory right to be accompanied at a disciplinary or grievance hearing by a trade union official or a fellow worker is triggered when the worker "reasonably requests" to be accompanied at the hearing.
You might think that the word "reasonably" would apply to the worker’s choice of representative as well as the request itself, but two recent Employment Appeal Tribunal cases have made it clear that it does not!
Provided that a worker requests either a trade union official or a fellow worker, the EAT has stated that an employer cannot reject that request, even if the employer has reason to believe that the worker’s choice is unreasonable.
This flies in the face of the current ACAS Code of Practice on disciplinary and grievance procedures, which 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 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 has effectively disregarded the above guidance, which is to be re-visited and amended in due course (ACAS are in the process of consulting about its proposed changes to the above Code of Practice).
One saving grace, however, is that the EAT indicated that the amount of compensation (capped at two weeks’ pay) which workers should receive if an employer refuses their choice of representative should be nominal if the worker has not suffered any detriment or loss as a result, and compensation is likely to be nil if the worker deliberately chooses an unsuitable companion.
Finally, few workers are likely to bring stand-alone Tribunal claims on this point, as they would have to pay a £250 application fee for the privilege!
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.
