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Employee’s choice of Representative doesn’t have to be reasonable

The Employment Appeal Tribunal (EAT) have found that an employee’s request for a particular companion at the grievance or disciplinary meeting does not have to be reasonable, in contrast with ACAS guidance.

In Toal v GB Oils Limited, two employees raised a grievance. Both were invited to a grievance meeting and the employees made clear that they wished to be accompanied by a particular individual, Mr Lean, who was an elected official of Unite. GB Oils refused to allow Mr Lean to accompany the employees and the employees arranged for alternative representatives to accompany them to the grievance and grievance appeal meetings.

Both employees raised claims on the basis that Toal breached their right to be accompanied at a grievance or disciplinary meeting.

Section 10 of the Employment Relations Act 1999 provides that where a worker is invited to attend a disciplinary or grievance hearing, and they reasonably request to be accompanied at the hearing, the employer must permit the worker to be accompanied by a single companion who is chosen by the worker and who is either a qualified trade union official or a colleague.

ACAS guidance states that to exercise the right to be accompanied, a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each 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 be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.

The EAT in Toal found that the employer must grant an employee’s reasonable request to be accompanied. The request for a particular companion, does not have to be reasonable. The EAT emphasised that the legislation allows the employee to choose the companion, as long as he is a qualified trade union official or a colleague. It is not for the employer to decide whether the choice of representative is appropriate beyond this.

This decision may cause difficulty for employers in situations where the attendance of a certain representative may seem unhelpful or prejudicial but, the employer cannot object to the choice of companion unless it’s on the basis that they are not a colleague or trade union official. A hearing should also be re-scheduled if the chosen companion will not be available at the time proposed by the hearing and the worker proposes an alternative time which is reasonable and is within 5 working days of the date originally proposed by the employer.

The remedy for refusing an employee’s right to be accompanied is compensation to an amount not exceeding 2 weeks’ pay. In the Toal case, the EAT found that the employees had not suffered a loss or detriment by being refused his choice of companion and so the EAT suggested that the amount of compensation awarded should be £2 or some other small sum of that order (although it is being remitted back to the Employment Tribunal for them to ultimately decide the exact amount of compensation). In some cases, the amount might be closer to the full award of 2 weeks pay where the employee does appear to have suffered a loss or detriment, for example, refusing to allow any companion at a disciplinary meeting which results in dismissal.

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