Worker’s Choice of Companion Does Not Have to be Reasonable
A worker’s choice of companion at a disciplinary or grievance hearing does not have to be reasonable.
In Toal v GB Oils Ltd, T requested to be accompanied at a grievance meeting by Mr Lean, a Unite union official. The employer refused T’s request. He was instead accompanied by a colleague and then by a different union official at the appeal hearing. T brought a claim for breach of the right to be accompanied at a grievance hearing.
S10 Employment Relations Act 1999 provides a worker with the right to be accompanied at a grievance hearing where he reasonably requests to be accompanied. The employer must permit the worker to be accompanied by a companion chosen by the worker.
The employer argued that a worker’s choice of companion has to be reasonable. The EAT disagreed. A worker has an absolute right to choose their companion, subject only to the qualifying criteria set out in s10(3) i.e. they must be a colleague or a trade union official.
The EAT rejected the employer’s argument that the Acas Code of Practice on Disciplinary and Grievance Procedures could be used to construe s10 as requiring the worker’s choice of companion to be reasonable. The Code states that it would not be reasonable for a worker to insist on a companion whose presence would prejudice the hearing nor a companion from a remote location.
The EAT did however suggest that where a tribunal is satisfied that a worker has suffered no loss or detriment as a result of being refused their choice of companion it may (and in its view should) feel constrained to make an award of nominal compensation only, suggesting a figure of the order of £2.
Employers will often consider an employee’s choice of companion unreasonable if their presence prejudices the meeting. This case suggests that employers are not able to refuse a request on this basis as the worker has an absolute right to choose their companion. However, where the worker attends and is accompanied by someone else, a tribunal is likely to find that the worker has suffered no loss or detriment and only award nominal compensation. In any event, the maximum award for breach of the right to be accompanied is two weeks’ capped pay – currently £900.
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