Right to be accompanied: A minefield for employers?
When undertaking a disciplinary or grievance meeting, issues relating to the right to be accompanied can be tricky for employers.
Complaints and claims regarding this issue rarely reach the Employment Appeal Tribunal, but can turn an otherwise fair dismissal into an unfair one. One recent case has provided some useful clarification.
The right to be accompanied is a statutory right under s10 Employment Relations Act 1999 where a worker "reasonably request to be accompanied" at a disciplinary or grievance hearing. This right is extended to all workers, as opposed to just employees, but the companion has to be one of the following:
- A work colleague;
- A full time Trade Union Official; or
- A lay official who the Trade Union has certified in writing as having the necessary experience or training.
If an employee is denied this right and is ultimately dismissed then the denial may lead to a finding of unfair dismissal.
Recently in Toal v GB Oils Ltd the Employment Appeal Tribunal (EAT) confirmed that, contrary to guidance in the ACAS Code of Practice on Disciplinary and Grievance Procedures, "reasonably requests" does not mean that the employee's choice of companion has to be 'reasonable'.
In addition, if an employee is refused his first choice of companion then his statutory right to be accompanied is not waived by choosing another companion.
In this case, two Claimants each requested the same Trade Union official to be their companion at their respective grievance hearings. The employer declined these requests but allowed a fellow colleague to attend the hearings.
The EAT confirmed that when choosing a companion, a worker is restricted to picking a person within the three categories above but within those categories the companion can be whoever the worker so wishes and there is no requirement for that choice to be "reasonable".
On the issue of compensation, the law expressly provided for 'compensation' rather than a penalty. This left the ET to determine how much of a loss or a detriment the Claimants had suffered.
The maximum amount of compensation which can be awarded is two weeks' pay, and the EAT stated that, where there was no loss or detriment suffered, compensation could be a nominal amount only. However refusing a companion could also lead to a finding of unfair dismissal where the statutory cap is now the lower of £74,200 or a year's pay.
This case brings important clarification of what is set out in the ACAS Code of Practice and highlights the importance of strong, robust disciplinary and grievance procedures where these issues are dealt with. In light of this case, employers should be very wary when declining a request for a certain companion. It should only be considered when the proposed companion does not fall within one of the categories above.
If the required representative is not available then the worker can ask for the meeting to be postponed but for no longer than five days.