Can an employer veto an employee’s choice of companion?

The statutory right to be accompanied to a disciplinary or grievance hearing is well-established and as most of you will be aware, employees can ‘reasonably request’ a trade union representative or a colleague of their choice as their companion (section 10 of the Employment Relations Act 1999). 

In the case of Toal v GB Oils, the employer did not agree with Mr Toal’s choice of companion and he was forced to be accompanied by someone else. Was this a breach of his statutory right to be accompanied?

Mr Toal had raised a grievance and made a request to be accompanied by his union representative, Mr Lean. The employer refused this request, and Mr Toal was accompanied by a colleague instead (then at his grievance appeal he was accompanied by a different union representative).

Mr Toal brought a claim to the Employment Tribunal arguing that GB Oils had breached his statutory right to be accompanied, in that they had denied him the companion of his choice.

GB Oils argued that as the right to be accompanied applies where the employee “reasonably requests” to be accompanied, it did not apply here because it was not reasonable for Mr Lean to be the companion. It is not clear what their problem was with Mr Lean attending.

The Employment Tribunal did not agree with GB Oils’ submission but did reject Mr Toal’s claim, saying that if there had been a breach of the statutory right, Mr Toal had waived that breach by going ahead with another companion.

Mr Toal appealed to the Employment Appeal Tribunal (EAT). The EAT agreed with the Tribunal that GB Oils could not argue that it was not reasonable for Mr Lean to be the companion. However, they did not agree that Mr Toal had waived his right to be accompanied by Mr Lean.

The EAT said that the law is clear and that employees have an absolute right to choose their companion. The wording of the legislation only required the request to be accompanied to be reasonable, not the choice of companion.

GB Oils argued that the ACAS Code of Practice specifically refers to situations where the choice of companion may not be reasonable, such as someone whose presence would prejudice the hearing. However the EAT said that the ACAS Code could not be used to alter the meaning of legislation where the wording of the legislation was clear. The legislation did not require the choice of companion to be reasonable.

Mr Toal had therefore succeeded in showing a breach. However, there was a sting in the tail for him – the EAT said that in their view, although his statutory right had been breached, compensation would only be nominal (they gave the example of £2, but said it was for the Tribunal to decide). Given that the maximum compensation for breach of the right to be accompanied is limited to two weeks’ pay in any event, it seems that the EAT were sending out a clear message that they did not consider this to be a serious breach.

This case is helpful to employers but does leave an unsatisfactory position when there are concerns about an employee’s choice of companion – should the employer deny the request as GB Oils did, knowing that compensation would be minimal (and that most employees would probably not bring a claim) but knowing that it is a breach of a statutory right? But also, does this give adequate protection for employees who may be denied the right to be accompanied in other circumstances?

We expect that despite the low value of this case, it may well be appealed to the Court of Appeal. We will of course update you on any future developments.

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.