A recent Employment Appeal Tribunal demonstrates the latitude which employers must give workers in choosing companions to accompany them at disciplinary and grievance meetings.
Under section 10 of the Employment Relations Act 1999 (ERA 1999) a worker has the statutory right to be accompanied at a disciplinary or grievance hearing by a companion of their choice who is either:
- a paid official of a trade union,
- an unpaid official of a trade union who is certified as competent to act as a companion, or
- another of the employer's workers.
In the event that the worker's chosen companion can not attend the hearing at the time proposed by the employer the meeting must be postponed for a reasonable amount of time, subject to a limit of five working days.
The right applies where the worker has been invited to attend a formal meeting and "reasonably requests" to be accompanied at that meeting. The ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code) states that:
".it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor..a companion from a remote geographical location if someone suitable and willing was available on site."
If an employer denies a worker this right, or even threatens not to allow a companion to be present, then the worker may complain to an employment tribunal which may award compensation of up to two weeks' pay.
In addition, it is likely that a tribunal would consider an employer had not followed a fair procedure if it did not allow an employee to be accompanied at a disciplinary meeting prior to dismissal. This would lead to a finding of unfair dismissal.
Two employees raised grievances with their employers and were invited to attend a grievance meeting. As they were both members of Unite they requested to be accompanied by Mr Lean who was an official of that trade union. The employer refused to let Mr Lean act as companion and they chose a fellow worker, Mr Hodgkin, to accompany them instead. Mr Hodgkin was allowed to attend the meetings. The employees appealed against the outcome of the grievance hearing and, at the appeal meeting were accompanied by another trade union official.
The employment tribunal considered that by refusing to let Mr Lean act as companion the employer was potentially in breach of their statutory obligations under the ERA 1999 but that the claimants had waived that breach when they were allowed to take their replacement companion, Mr Hodgkin. The tribunal considered that, "the fact that [he] was second choice [was] immaterial".
The employees appealed.
The Employment Appeal Tribunal decision
The EAT rejected the employer's argument that the phrase "reasonably requests" in section 10 ERA 1999 applied both to the requirement to be accompanied and the employee's choice of representative.
The EAT went on to reject the relevant paragraph of the Code as an aide to the construction of the ERA 1999, in its view the meaning of the words in section 10 were perfectly clear: the reasonableness requirement only applied to the requirement to be accompanied and not to the choice of representative.
As regards the tribunal's conclusion that the employees had waived the employer's breach of statutory obligation by being allowed to take their second choice companion, the EAT disagreed that this was a possibility open to them; statutory rights can only be waived by means of a valid compromise (soon to be settlement) agreement.
While this decision was a victory for the employees, when it came to awarding compensation the EAT suggested that there had been no loss or detriment to the employees and that accordingly, while a tribunal should not award nil compensation in such cases, it should award only nominal compensation - the traditional amount being 40 shillings (or £2 in "new money"). The case was remitted to the same employment tribunal to decide the question of compensation.
In its decision the EAT noted that the guidance in the Code about companions threw up various problems such as who is to determine if the companion would prejudice the hearing? In future therefore, employers would be advised not to rely on the ACAS guidance and remember that workers have an unfettered right to chose their companion, subject only to the three requirements set out above.
Toal & Anor v GB Oils Ltd UKEAT/0569/12