Case update (2): Right to be accompanied

companionSummary: Is it a breach of an employee’s right to be accompanied for an employer to refuse to allow a disruptive trade union representative to act as a companion in any of its disciplinary or grievance hearings? Even when no prior notice of the representative’s attendance at the hearing has been given?

Yes, says the Tribunal in Eleftheriou and another v Arriva London North Ltd.

Background: The law, section 10 of the Employment Relations Act 1999, says that an employee can choose a companion to accompany them to disciplinary or grievance hearings as long as they are a work colleague, a union official or certified by the union as having experience or training in acting as a companion. This is reflected in the updated ACAS Code of Practice – Disciplinary and Grievance procedures (available here).

The case of Toal and another v GB Oils Ltd (which we updated you on in our September 2013 Newsletter Case update (2): Right to be accompanied – whose choice?) made it clear that there is not a further condition that the choice of companion be “reasonable”. An employee is entitled to have present whoever 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. 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.

Facts: Bus drivers Mr Eleftheriou and Mr Bowani wanted Mr McConville, an accredited trade union representative for the RMT, as their companion at disciplinary hearings. The employer expected employees to inform it in advance of their choice of companion. However, Mr Eleftheriou did not do this but rather just turned up at the hearing with Mr McConville

Due to previous disruptive behaviour at hearings, managers had been instructed not to allow Mr McConville to accompany employees and so the employer refused to allow either employee to be accompanied by Mr McConville.

Mr Eleftheriou’s disciplinary hearing went ahead without representation and he was issued with two cautions.   Mr Bowani had alternative representation at the hearing and he was dismissed.

Both employees brought Tribunal claims that the employer breached their right to be accompanied under section 10 of the Employment Relations Act 1999 (see Background above).

The employer gave evidence that Mr McConville had been banned from representing employees because he had caused trouble at hearings. The employer said that Mr McConville had a tendency to speak over others and would not allow others to talk. It said that Mr McConville had at times said insulting and inappropriate things to managers. Mr McConville gave evidence before the Tribunal, explaining that he had been diagnosed with autistic spectrum disorder. Symptoms include finding it difficult to stop talking.

The Tribunal held that the employer had breached the employees’ rights to be accompanied and referred to Toal and another v GB Oils Lt (see Background above). The Tribunal clarified that, as long as the choice is a trade union official or a fellow worker, an employer should not veto the employee’s choice, even when it considers the companion to be unsuitable.

Further, the Tribunal accepted that Mr Eleftheriou had, by simply turning up to the disciplinary hearing with Mr McConville, made a request to be accompanied. There is no strict requirement in the ACAS Code of Practice – Disciplinary and Grievance procedures that employees inform employers in advance of their choice of companion at disciplinary hearings.

However, the Tribunal did comment that if there is some doubt as to a trade union representative’s credentials (which was not the case here) it might be reasonable that the request to be accompanied be made in advance.

The Tribunal awarded each employee two weeks’ pay in compensation.

Implications:  Employers will breach an employee’s right to be accompanied, and open themselves to a Tribunal claim for two weeks’ pay, if they refuse an employee’s choice of companion for disciplinary or grievance hearings as long as they are a work colleague or accredited trade union representative. The Tribunal in this case suggests that this is the position even if the employee’s companion simply turns up at the hearing with no prior notice of his or her identity. However, the Tribunal does suggest that a refusal to allow a trade union representative to be a companion might be reasonable if there is some doubt as to the representative’s credentials.

It is also worth remembering that the EAT in Toal and another v GB Oils Ltd (see Background above) clarified that, where the employer has been in breach of the obligation, a Tribunal must go on to assess the loss or detriment suffered by the employee in consequence. Therefore, depending on the circumstances, only nominal award of compensation could be made – in the case of Toal about £2.00! Therefore employers may decide to take the risk, insist on a reasonable choice of companion and, assuming an alternative person can be appointed for the employee, the resulting financial risk may be very limited – in any event no more than two weeks’ pay.