Employees (and workers) have the right to be accompanied by a trade union representative or a fellow worker of their choice at a disciplinary or grievance hearing (section 10 of the Employment Relations Act 1999).
If an employer does not allow the employee their right to be accompanied, the employee can bring a claim against their employer. If the Employment Tribunal upholds the claim, it must order the employer to pay compensation to the employee of up to 2 weeks’ pay (subject to a cap, currently £489 per week).
Employees are also protected from being subjected to a detriment or being dismissed because they have exercised or sought to exercise their right to be accompanied (section 12 of the Employment Relations Act 1999).
The right to be accompanied only applies if the employee ‘reasonably requests’ to be accompanied at the hearing. However, case law has established that it is the request that has to be reasonable, not the employee’s choice of companion.
This can leave employers in a difficult position if the employee’s choice of companion is unreasonable.
The Employment Appeal Tribunal established, in the 2013 case of Toal v GB Oils (2013), that where the employee has suffered no loss or detriment from the employer’s failure to comply with the right to be accompanied, they should only be awarded nominal compensation such as £2 (see Nicola’s previous article on the case here).
The issue cropped up again in the recent case of Gnahoua v Abellio London Ltd (2015). Mr Gnahoua was a bus driver employed by Abellio. Following his dismissal for gross misconduct (using his iPad while the bus was moving) he brought various claims against the company, including that their refusal to allow him to be accompanied at his disciplinary appeal hearing was a breach of his statutory right to be accompanied, and that he had been subjected to a detriment by his employer because he had sought to exercise his right to be accompanied.
Abellio refused to allow Mr Gnahoua to be accompanied by a union official because they had a policy of not allowing that particular official, or his brother who was also a union official, to act as companions at disciplinary or grievance hearings. The reason for this was that in previous Tribunal proceedings one of the brothers had brought against the company, the Employment Tribunal had made a costs order for £10,000 against both brothers for vexatious conduct, namely falsifying the date on which a witness statement was prepared.
The Employment Tribunal found that whilst Mr Gnahoua’s right to be accompanied had been breached, he had not suffered any loss or detriment. Therefore, they awarded him compensation of £2. The Employment Tribunal held that for there to be a breach of section 12 of the Employment Relations Act 1999, there must be a particular detriment over and above the employee not having a companion at the disciplinary or grievance hearing.
The Employment Tribunal said it made no criticism of Abellio and said the employer’s stance was understandable. They noted that Abellio had followed the ACAS Code of Practice (see our previous article here) and had strong grounds for interfering with the employee’s choice of companion.
It is important to remember that employees have an absolute right to choose their companion, and if an Employment Tribunal finds that an employee has been dismissed because they have sought to exercise their right to be accompanied, then the dismissal is regarded as automatically unfair.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.