Refusing an Employee’s Right to be Accompanied

When an employee is invited to attend a disciplinary or grievance hearing they must be advised of their right to be accompanied by a colleague or a trade union representative.

A question that has recently been considered in the Employment Appeals Tribunal (EAT) is whether an employee’s right to be accompanied under s.10 Employment Relations Act 1999 is limited by the reasonableness of the request or by the choice of companion under s.10(3).

In a previous case of Toal v GB Oils Limited the EAT decided that the choice of companion only had to be a reasonable one.

The more recent case of Roberts v GB Oils Limited involved an appeal against the same employer. The Claimant was refused his first choice of companion at a disciplinary hearing and was found to have been fairly dismissed. He also failed in his claim for a breach of s.10 Employment Relations Act 1999 at the Employment Tribunal.

The EAT held that the decision in Toal v GB Oils Limited was correct and the Claimant’s appeal was upheld. Despite having reservations as to the effect of the decision the EAT decided that that the statute was clear. They also considered the ACAS Code which indicated that a broader interpretation of “reasonable” should be applied and that it should extend to the choice of companion.

The EAT observed however that there was a safeguard for an employer against a worker’s choice of an unsuitable companion. What if the chosen companion was known to be disruptive for example? In such cases the Employment Tribunal would have the power to reduce compensation paid to the worker even to nil.

The EAT did not address the situation where a worker might withdraw a request to be accompanied by a particular companion and substitutes it with a new request for a companion. This was not raised at the Employment Tribunal and as a result there is some uncertainty as to the position here.

The EAT remitted the matter of compensation to the Employment Tribunal where they would have the power to award compensation of up to two weeks’ pay.

It is important to make sure that every employee who is invited to attend a disciplinary or grievance meeting is advised of their right to be accompanied and it is now clear that so long as the request for a particular companion is reasonable it should not be refused.

If you have been invited to attend a disciplinary or grievance hearing you are concerned that you may be dismissed or you would like to raised a grievance with your employer regarding discrimination or a breach of your employment rights please contact the dedicated employment team at Oakwood Solicitors and we will be happy to discuss your situation with you.