Right to be accompanied - whose choice is it anyway?
Section 10 of the Employment Relations Act 1999 ("the Act") provides that a worker has a statutory right to be accompanied at a disciplinary or grievance hearing.
In the EAT’s decision in Toal and another v GB Oils Ltd, it was held that there is no requirement that the employee’s choice of companion had to be "reasonable". ACAS recently announced it will shortly be revising its Code of Practice on Disciplinary and Grievance Procedures to reflect the EAT’s decision.
Section 10 of the Act applies where a worker is required to attend a disciplinary or grievance hearing and the worker reasonably requests to be accompanied at the hearing. The companion must be:
- Employed by a trade union (a paid official)
- An official of a trade union who is certified by the trade union as having experience or training in acting as a companion
- Another of the employer’s workers
If the worker’s chosen companion cannot attend the hearing at the proposed time then it can be re-arranged provided this is done within five working days.
The ACAS Code of Practice suggests that in exercising the right to be accompanied, the worker must make a reasonable request and there may be circumstances when it will not be reasonable to request a particular companion. For instance, where the companion’s presence would prejudice the hearing.
In the case of Toal an issue arose because the employer refused to allow the employees’ chosen companion to attend a grievance hearing. Mr Toal and his colleague were members of Unite and they wanted a Unite official (who was certified as having experience or training) to act as their companion at a grievance hearing. However, GB Oils Ltd refused their choice of companion citing the ACAS Code. An alternative companion, a colleague, was then selected by the employees and at the subsequent appeal, the employees’ chosen companion was a different member of Unite.
Both employees later brought a claim against GB Oils Ltd for breach of their section 10 right, that is, the rejection of the choice of companion at the first grievance meeting.
Employment Tribunal and EAT decisions
The Employment Tribunal said that the word "reasonably" in section 10 referred only to the right to be accompanied but did not extend to the worker’s choice of companion. Consequently, an employer had no authority to reject a companion who falls within the permitted list. However, it dismissed the claim stating that the employees had waived GB Oils’ breach by agreeing to use an alternative companion.
On appeal, the EAT said that there is a statutory right to be accompanied and there was no restriction to this right save for the category of person who could act as a companion. GB Oils Ltd argued that in construing section 10, the ACAS Code should be taken into account arguing that the initial chosen companion could be prejudicial to the grievance hearing. The EAT disagreed and held that the legislation was already clear and the ACAS Code "is not an available aid to the construction of a statute". GB Oils Ltd had breached their employees’ rights by refusing to allow them to be accompanied by the companion of their choice.
The remedy for breach of section 10 is an award of up to two weeks’ pay but the EAT assessed that the employees had suffered no loss or detriment as a consequence of the breach. It referred the matter back to the Employment Tribunal to assess the level of the award but indicated that only a nominal award should be made "either in the traditional sum now replacing 40 shillings - £2 or some other small sum".
The sums to be awarded in Toal may well be nominal but the implications of the decision are significant. In October 2013, ACAS issued a press release stating that it will be amending the ACAS Code to reflect the EAT decision to clarify that there is no requirement for the choice of companion to be reasonable. If a request to be accompanied by a companion to a disciplinary or grievance meeting falls within the permitted categories contained in the Act, that companion must be allowed to attend and there can be no interference with an employee's choice.
Employers should now review their disciplinary or grievance policies and amend these if there is any restriction (along the lines of the ACAS Code) about the companion that can attend.
Don’t forget that in certain circumstances an employer may use its discretion to permit a companion from outside the permitted list, such as a spouse, carer, or friend. Such a companion may be helpful to the employee and although it is not a legal requirement it is often helpful where for example, the employee has a disability, is particularly young or has poor English.