Tweet
http://www.cipd.co.uk/pm/peoplemanag...t=250713_law_1
The EAT has rejected guidance in the Acas code, referring employers instead to the letter of the law
When workers choose companions to accompany them to a grievance hearing, does an employer have the right to decide the person chosen is unreasonable and reject the worker’s choice? This was a key issue for the EAT to decide in Toal and another v GB Oils Ltd.
Workers have the right to ‘reasonably request to be accompanied at a disciplinary or grievance hearing’ under S10(1) of the Employment Relations Act 1999 (ERA). Section 10(3) lists the categories of companions permitted, which includes a trade union official or another of the employer’s workers. In this case, the employer refused requests from Toal and another worker to be accompanied at a grievance hearing by a particular trade union official. The employer, however, did permit a work colleague and another trade union official to act as companions to the two workers in the grievance hearing and subsequent internal appeal hearing.
Tribunal
Toal and his colleague put in a claim over the employer’s failure to permit them to be accompanied by their chosen companion. The employment tribunal rejected the claim on the grounds that the workers had waived (given up) their right to be accompanied by their first choice trade union official when they accepted the employer’s offer of alternative companions. Toal and Hughes appealed, arguing that it was not open to the tribunal to find they had waived their right to be accompanied by their preferred official.
EAT
The Employment Appeal Tribunal rejected the employer’s argument that the word ‘reasonably’ used in the relevant paragraph of Acas Code of Practice on Disciplinary and Grievance Procedures applied to the choice of companion as well as to the request to be accompanied. The Code states that ‘it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing’. The EAT held that an Acas code of practice cannot help in the construction of the law and the guidance could not be accepted. The ERA makes no mention that the choice of companion must be reasonable and in any event, there is no standard by which ‘reasonableness’ could be judged.
The appeal tribunal also ruled that where employees choose another companion after the first has been rejected, that does not mean those employees have waived their right to be accompanied by their first choice. It also pointed out that employers and employees cannot waive a statutory right.
So the EAT upheld the employees’ appeal, ruling that there is no requirement for a request for a particular companion to be reasonable, provided that companion is within one of the permitted categories, and clearly Toal’s first choice of trade union official was such a person.
Comment
This is a significant ruling by the EAT for two reasons. First, it puts the status of an Acas statutory code of practice in context. A code is empowered under S.199 of the Trade Union and Labour Relations (Consolidation) Act 1992 to offer practical guidance, but it cannot interpret the law – that is a role for the courts. Furthermore, as the EAT confirmed, a code cannot plug a perceived gap in the law where the language used in a statute is straightforward. There is no requirement for the employee’s choice of companion to be reasonable in section10 of the ERA and, equally, no power for the employer to decide who is reasonable.
So, what is the right guidance for employers if this aspect of the Acas code cannot stand? It is simply this: as long as the chosen companion comes within one of the permitted categories, then there can be no interference with the worker’s choice.
Secondly, this case is a reminder that the law is clear on the waiving of statutory rights. Neither employers nor employees can waive a statutory requirement, whether they are using an express or an implied agreement. Any such agreement will be void and unenforceable.
- Employees’ rights over their choice of grievance companion
- Makbool Javaid
- 25 Jul 2013
- Comments comments
The EAT has rejected guidance in the Acas code, referring employers instead to the letter of the law
When workers choose companions to accompany them to a grievance hearing, does an employer have the right to decide the person chosen is unreasonable and reject the worker’s choice? This was a key issue for the EAT to decide in Toal and another v GB Oils Ltd.
Workers have the right to ‘reasonably request to be accompanied at a disciplinary or grievance hearing’ under S10(1) of the Employment Relations Act 1999 (ERA). Section 10(3) lists the categories of companions permitted, which includes a trade union official or another of the employer’s workers. In this case, the employer refused requests from Toal and another worker to be accompanied at a grievance hearing by a particular trade union official. The employer, however, did permit a work colleague and another trade union official to act as companions to the two workers in the grievance hearing and subsequent internal appeal hearing.
Tribunal
Toal and his colleague put in a claim over the employer’s failure to permit them to be accompanied by their chosen companion. The employment tribunal rejected the claim on the grounds that the workers had waived (given up) their right to be accompanied by their first choice trade union official when they accepted the employer’s offer of alternative companions. Toal and Hughes appealed, arguing that it was not open to the tribunal to find they had waived their right to be accompanied by their preferred official.
EAT
The Employment Appeal Tribunal rejected the employer’s argument that the word ‘reasonably’ used in the relevant paragraph of Acas Code of Practice on Disciplinary and Grievance Procedures applied to the choice of companion as well as to the request to be accompanied. The Code states that ‘it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing’. The EAT held that an Acas code of practice cannot help in the construction of the law and the guidance could not be accepted. The ERA makes no mention that the choice of companion must be reasonable and in any event, there is no standard by which ‘reasonableness’ could be judged.
The appeal tribunal also ruled that where employees choose another companion after the first has been rejected, that does not mean those employees have waived their right to be accompanied by their first choice. It also pointed out that employers and employees cannot waive a statutory right.
So the EAT upheld the employees’ appeal, ruling that there is no requirement for a request for a particular companion to be reasonable, provided that companion is within one of the permitted categories, and clearly Toal’s first choice of trade union official was such a person.
Comment
This is a significant ruling by the EAT for two reasons. First, it puts the status of an Acas statutory code of practice in context. A code is empowered under S.199 of the Trade Union and Labour Relations (Consolidation) Act 1992 to offer practical guidance, but it cannot interpret the law – that is a role for the courts. Furthermore, as the EAT confirmed, a code cannot plug a perceived gap in the law where the language used in a statute is straightforward. There is no requirement for the employee’s choice of companion to be reasonable in section10 of the ERA and, equally, no power for the employer to decide who is reasonable.
So, what is the right guidance for employers if this aspect of the Acas code cannot stand? It is simply this: as long as the chosen companion comes within one of the permitted categories, then there can be no interference with the worker’s choice.
Secondly, this case is a reminder that the law is clear on the waiving of statutory rights. Neither employers nor employees can waive a statutory requirement, whether they are using an express or an implied agreement. Any such agreement will be void and unenforceable.
