ACAS Code of Practice after Toal v GB Oils

In 2013 the Employment Appeal Tribunal delivered its important judgement on trade union rights in Toal v GB Oils.

The case was in the interpretation of the right of a worker to be accompanied at a disciplinary or grievance meeting by a trade union representative of their choosing. Section 10(2) of the Employment Relations Act 1999 sets out that:

(2)Where this section applies the employer must permit the worker to be accompanied at the hearing by a single companion who— (a)is chosen by the worker and is within subsection (3),

In the case an employee was called to a disciplinary meeting and requested that he be accompanied by a named representative of his trade union (Unite), who was based some distance away. The employer refused the request because it did not consider the request reasonable, but did allow the employee to be represented by another worker.

In the ACAS Code of Practice then extant the reasonableness of the request included the choice of the companion, hence if the choice of accompanying union rep was ‘unreasonable’ it could be read as being capable of refusal:

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 last sentence was clearly apposite here.

However, Toal, at paragraph 20 of the judgement, found the ACAS Code to be in breach of the text of the 1999 Act: “there is, in our view, no lacuna to be filled. Section 10 of the 1999 Act works perfectly well read and understood in accordance with its straightforward language.” The result of this is that if a trade union rep meets is a properly accredited representative then an employee may request accompaniment by the representative and this must be allowed by the employer (it does not in fact matter if the employee is even a member of that trade union or whether the rep is a employee of the employer) – it is necessarily reasonable.

In the PCS context it seems likely to me that it was on the basis of Toal that PCS rep Lee Rock was able to win the reportable out of court settlement on representation rights after DWP refused permission for a PCS member to represent a PCS member.

In light of the embarrassing exposure that the ACAS Code of Practice was in fact incompatible with the legislation it was giving guidance from it has this week issued new guidance on the right to accompaniment of workers.