In the recent case of Toal and another v GB Oils Ltd, the Employment Appeal Tribunal (EAT) decided that there is no requirement for an employee’s request to be accompanied by a particular companion at a disciplinary or grievance hearing to be a reasonable one.
Mr Toal and Mr Hughes were employed by GB Oils Ltd. They both raised grievances with their employer. Following an invitation to attend a grievance hearing both requested to be accompanied by Mr Lean who was an elected and appropriately certified official of Unite and both employees were members of the union.
The employer refused the employees request to be accompanied by Mr Lean as they believed he was not a reasonable choice of companion. The employees asked a fellow worker to attend the meetings with them instead. Their grievances were not upheld and during the appeal hearings they were allowed to be accompanied by Mr Silkstone who was a union official.
Mr Toal and Mr Hughes complained to an employment tribunal that their rights under section 10 of the Employment Relations Act 1999 had been breached when their request to be accompanied by Mr Lean had been refused.
The tribunal confirmed that the wording of section 10 provides that the employee has a right to be accompanied where the worker is invited by his employer to attend a disciplinary or grievance meeting, and reasonably requests to be accompanied at the hearing. The tribunal found that the word ‘reasonably’ refers to the request to be accompanied and not to the choice of companion, provided that the choice of companion is either:
- Employed by a trade union of which he is an official;
- An official of a trade union whom the union has certified in writing as having experience of or training in acting as a workers companion at disciplinary or grievance hearings; or
- Another of the employers workers.
The tribunal found that, despite this, the employees had waived the breach in their acceptance of an alternative companion and dismissed their complaint. The employees complained to the Employment Appeal Tribunal.
GB Oils Ltd relied on the wording of the ACAS Code of Practice which states that in order for the worker to exercise the right to be accompanied the worker must first make a reasonable request. The Code states:
“What is reasonable will depend on the circumstances of each individual case. However it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.”
The EAT states that Parliament had not expressly provided that the choice of companion must be a reasonable one, merely to request to be accompanied must be reasonable and therefore the employer had no right to object to the choice of companion. They stated that while the ACAS code provides guidance it should not be used to contravene statute.
The EAT did not agree that the employees had waived the breach by virtue of accepting an alternative companion however chose not to make an financial award of two weeks pay as there had been no loss suffered by the employees, however suggested a nominal award of £2.
ACAS are now re-writing the Code of Practice to reflect this ruling.
How does this affect employers?
On the basis of this decision an employer can no longer make a decision to refuse an employee in their choice of companion at a disciplinary or grievance hearing providing that they fall within the definition of section 10.
There is no requirement for an employee to be a member of the trade union that has chosen to come along and represent them, nor does the representative have to be employed by the employer.
Employers must remember that companions can:
- Address the hearing;
- Confer with the worker.
It is therefore very clear that if the employer is not permitted to vet the workers choice of companion, we would strongly recommend that any employer who finds themselves in this position or a similar scenario, seek professional legal advice as to how to conduct the hearing whilst ensuring they remain within the current legal framework. It is expected that this case will be appealed in a higher court.
If you have any questions regarding disciplinary and grievance hearings, or any other employment matter please contact our employment team.