Employees have a statutory right to be accompanied to a disciplinary or grievance hearing by a colleague or trade union official of their choice. The recent case of Gnahoua v Abellio London Ltd may be heartening to employers who have cause to reject an employee’s choice of companion for good reason.
Care should be taken in this area as an employer found to be acting unreasonably may be punished by an uplift in damages awarded to the employee.
Mr Gnahoua (‘the Claimant’) was employed by the Respondent as a bus driver. He was summoned to a disciplinary hearing over allegations that he failed to carry out required checks on his vehicle and that he was seen driving whilst using an iPad.
The Claimant asserted his right to be accompanied to the hearing. He elected to bring one of two brothers, both trade union representatives but who had been banned from attending workplace meetings by the Respondent because of previous vexatious and threatening conduct.
On this basis the Respondent refused to allow either union representative to accompany the Claimant to his hearing. The Claimant therefore attended the hearing alone.
The Employment Relations Act 1999 gives the employee a statutory right to be accompanied, with compensation of up to two weeks’ pay being awarded where employers fail to comply.
The tribunal’s finding
The tribunal followed Employment Appeal Tribunal (‘EAT’) case law (Toal v GB Oils Ltd) which states that an employee has an absolute right to be accompanied by their chosen companion, providing that their companion is a colleague or a certified trade union official.
However, the tribunal also noted previous EAT suggestion that where the employee suffers no loss or detriment as a result of the employer’s refusal, only nominal compensation was an option for tribunals. Finding that the Claimant had not suffered any such loss or detriment in this case, the tribunal awarded him £2 in compensation. In reaching this conclusion the tribunal found that Abellio had conducted the disciplinary hearing in a considerate and thorough fashion, going through his arguments and taking into account his long service.
The size of this award may provide comfort to employers, but should remind also employers that employees do have an unfettered right to be accompanied. A representative’s previous conduct towards the employer does not allow that employer to refuse the employee’s request to be accompanied by that person but, given this precedent, some employers may wish to take a view in these circumstances if the effect of a particular representative attending is likely to be detrimental.
As the ACAS code reflects the case law of Toal v GB Oils (that an employee has an unfettered right to choose their own companion), a tribunal could potentially increase the compensation awarded to an employee by up to 25% if it considers the employer has unreasonably failed to follow that part of the ACAS code. Nevertheless the decision in Gnahoua does demonstrate that where the Claimant has suffered no loss, they will not be entitled to substantial damages and so bringing a standalone claim for breach of the right to be accompanied in such circumstances is unlikely to be worthwhile.
If you require advice on the right to be accompanied or any other employee relations issue please contact the Devonshires Employment Team.