In the recent case of Toal and another v GB Oils Ltd the EAT has held that employees have an absolute right to choose their companion, which is only limited by the statutory qualifying criteria, namely that the chosen companion must be a trade union representative/official or one of the employees workers.
The statutory right for workers to be accompanied by a trade union representative or fellow worker of their choice at a disciplinary or grievance hearing is contained in section 10 of the Employment Relations Act 1999.
In the case of Toal and another v GB Oils Ltd, Mr Toal and Mr Hughes raised grievances with their employer. They made it clear that they wished to be companied by Mr Lean, an official of Unite. This request was refused by GB Oils and the employees were instead accompanied by a fellow worker.
Both brought claims in the Employment Tribunal for breach of section 10 of the Employment Relations Act 1999.
The Tribunal held that GB Oils had not breached section 10 because the employees had waived any breach by choosing an alternative companion to accompany them to the meetings. The employees appealed this decision.
The EAT upheld the appeal finding that employees have an absolute right to choose their companion, which is only limited by the qualifying criteria set out in section 10 (3) of the Employee Relations Act 1999. However, notwithstanding this finding, the EAT did not award compensation and remitted the question of compensation to the Tribunal. The Tribunal held that compensation should be for loss incurred and should not be used as a penalty against the employer.
The EAT’s finding in this case suggests that an employer cannot deny the worker their choice of companion as long as the companion falls within the categories of section 10(3).
This finding appears to overlook the need for any request to be reasonable (as provided by section 10(1)(b) of the Employee Relations Act 1999) and appears to contradict the examples given in the Acas Code.
We would suggest to employers that following this case that they err on the side of caution before refusing an employee their chosen companion. However, where employers consider an employee’s choice to be unreasonable or they have a particular concern regarding the proposed companion, we would suggest that they weigh up the risk of allowing the companion to attend the grievance or disciplinary hearing against refusing the choice of companion and accommodating an alternative and therefore potentially breaching section 10.