Who can be a representative?

As we saw in a previous session, there is an obligation to allow a worker to bring a representative.

To recap, the statutory right is to be accompanied by a fellow worker, a trade union representative or an official employed by a trade union. This is not legal representation. The complexities of accompaniment are outlined in the description of the case below.

Toal and Hughes vs GB Oils Ltd

The ACAS Code of Practice on disciplinary and grievance procedures (ACAS Code) provides confirmation of the minimum right to be accompanied and guidance on how it should be applied.

A problem arising with the legislation concerning companions is whether employers had to allow:

A reasonable request to be accompanied

or

A reasonable choice of companion.

In March 2015 small changes were made to the ACAS code. The revision came about as a result of a 2013 case which decided that the previous ACAS Code did not accurately reflect the law on the statutory right of accompaniment. In Toal and Hughes vs GB Oils Ltd (unreported, UKEAT/0569/12 22 May 2013, EAT) the employer refused a request from two employees to be accompanied by a trade union official at a grievance hearing. The employer preferred that a work colleague and another trade union official should act as companions instead. The Employment Appeal Tribunal held that workers had an absolute right to choose their companion, provided that they fell into one of the permitted categories (that is, a trade union official, certified trade union representative or a fellow worker of their choice). The companion does not have to be reasonable. In other words, the 'reasonableness' requirement does not apply to the precise choice of companion.

Q

Now access the discussion thread below.

How might you reduce the risks where a worker wishes to bring someone with whom your organisation has previously had difficult interactions?

How might you proceed, without being accused of interfering with the choice of representative?

How would you advise managers who came to you with this concern?