UK Employment Law | April.08.2015
It's that time of the year again – 5 and 6 April typically bring changes to UK employment law each year, and 2015 is no exception. So whilst we were busy enjoying the first day of sunshine and moaning about how creme eggs don't taste as good any more, UK employment law was busy a-changin'. In case you're still feeling a little lazy after the long Easter weekend, we've rounded up those changes and summarised them for you below.
In a little heralded but potentially wide-ranging change, the ACAS Code of Practice on Disciplinary and Grievance Procedures has been updated and the right of an employee to be accompanied at a disciplinary and/or grievance hearing by their choice of companion is now much stronger.
Up until now, and based on the previous wording of the ACAS Code, the requirement for the request to be reasonable was understood to extend to the employee's choice of companion, effectively giving the employer the right to say "no" if it was felt that the chosen companion was unsuitable in some way – usually because their presence would prejudice the hearing.
Employers frequently relied on this wording to veto an employee's choice of companion where it was felt there was a conflict of interest. However, on 11 March 2015, ACAS' new Code took effect and the wording previously relied on has been removed (this follows a 2013 Employment Appeal Tribunal decision). The new Code is available here.
The changes mean that employers should agree to an employee's reasonable choice of companion. "Reasonableness" will apply to the making of the request, and not to the choice of companion. We recommend that employers review their disciplinary and grievance procedures to bring them in line with the ACAS Code. We also recommend that employers think much more carefully before refusing an employee's choice of companion. If in doubt, please contact us to discuss further.
Whilst compensation for a breach of an employee's right to be accompanied is likely to be minimal, employers shouldn't lose sight of the impact such a course of action might have on the overall fairness of a dismissal. Employers can, of course, seek to engage with the individual employee concerned in relation to their choice of companion, clearly explaining the reasons why the companion is considered to be unreasonable, and ask the employee to agree to an alternative; but if the employee insists, the employer should think twice before turning them down.
As always, if you have any questions or comments on any of the above, please don't hesitate to contact a member of Orrick's employment team.