Case update (2): Right to be accompanied – whose choice?

companionSummary: Do employees who exercise the statutory right to be accompanied at a disciplinary or grievance hearing have an absolute right to choose their companion, regardless of whether it is a reasonable choice?

Yes, says the EAT in Toal and another v GB Oils Ltd.  An employee is entitled to have present whomever they choose, provided the individual is a relevant union representative or work colleague. Employers cannot refuse a particular companion on the grounds that their presence is unreasonable.

Background: The law says that an employee can choose a companion to accompany them to disciplinary or grievance hearings as long as certain requirements as to the identity of the companion are fulfilled (they must be an employee, a union official or certified by the union as having experience or training in acting as a companion). There is not a further condition that the choice of companion be “reasonable”. Breach of the right allows the worker to make a complaint to the Tribunal and, where a Tribunal finds a complaint is well founded, the penalty is an award to the employee of up to two weeks’ pay.

However, the ACAS Code of Practice on disciplinary and grievance procedures suggests that there may be circumstances in which it will not be “reasonable” to request a particular companion (for example, the Code says it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing).

Facts: In this case two employees were invited to grievance meetings. Both wanted to be accompanied by a particular union official who was certified in writing as having experience of acting as a worker’s companion.   The employer refused (for reasons that are not clear) to allow that official to accompany them. In the end, they were both represented by a fellow worker at their hearings instead and then by a different union official on appeal.

Mr Toal complained to the Tribunal but lost his claim, since the Tribunal found that he had waived the breach of his right to be accompanied by choosing another companion.  Mr Toal appealed to the EAT.

The EAT held that if a worker ‘reasonably’ requests to be accompanied by a companion at a disciplinary or grievance hearing, the request for a particular companion does not itself have to be ‘reasonable.’ The EAT decided that, as the legislation was already clear, the ACAS Code should not be used to interpret the statute and was not relevant in this case.  Therefore, the employer had breached the employee’s rights by refusing to allow him to be accompanied by the employee of his choice.

The EAT went on to make clear that, where the employer has been in breach of the obligation, it must go on to assess the loss or detriment suffered by the employee in consequence.  However, the bad luck for the employee in this case was that if the employee suffered no loss or detriment then only a nominal award of compensation could be made – about £2 here.

Implications:  There is an apparent conflict between this decision and the ACAS Code. Indeed, the decision is surprising, given that it makes sense that a particular choice of companion might be unreasonable due to a conflict of interest or because their presence might prejudice the hearing.

If your capability procedure and practices reflect the ACAS Code and allow the employer to reject a choice of companion as unreasonable, you should bear in mind that an employee may decide to bring a claim in such a situation.  However, you may well decide to take the risk, insist on a reasonable choice and follow the ACAS Code rather than follow this new judgment.  Assuming an alternative person can be, and is, appointed for the employee, the resulting financial risk for you may be very limited, given the EAT’s view that only a nominal award is likely to be appropriate if the right to a chosen companion is denied.  (Most of you could afford £2 or similar in such circumstances, we predict!)