Employee’s choice of companion does not have to be “reasonable” according to EAT

Toal and another v GB Oils Ltd

In Toal and another v GB Oils Ltd UKEAT/0569/12, the EAT has confirmed that an employee’s right to be accompanied at a disciplinary or grievance hearing is an absolute right and the employee’s choice of the companion does not have to be “reasonable” as long as it is a trade union official, union representative or a co-worker. ACAS has confirmed it will be changing its guidance as a result of the decision.

Despite finding that the employer had breached the statutory requirement, the EAT recommended that the employees should only receive nominal compensation of £2.

Legal Background

Employers will be familiar with the fact that workers have a statutory right to be accompanied at a disciplinary or grievance hearing. This applies where the worker has made a reasonable request and where the companion is either a trade union official or a co- worker (section 10 Employment Relations Act 1999 (“the Act)).

If the employer fails to comply (or threatens to fail to comply) with section 10 of the Act, the employee can bring a claim in the Employment Tribunal for compensation. Where the Employment Tribunal finds that the complaint is well founded “it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks’ pay.” (section 11 (3)).

The ACAS Code of Practice on Disciplinary and Grievance Procedures (the ACAS Code) adds detail about what amounts to a “reasonable request”, as this is not defined in the legislation. Paragraph 15 of the ACAS Code states:

“To exercise the statutory right to be accompanied workers must make a reasonable request. 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 decision in Toal rejected the terms of the ACAS Code and held that it was the request that had to be reasonable, not the choice of companion, which was for the employee to decide.

Facts

Mr Toal and Mr Hughes (the Claimants) raised grievances with their employer, GB Oils Ltd (the Respondent). The exact nature of the grievances was not discussed in the EAT judgment and was not relevant to the EAT’s decision. The employees were invited to attend a grievance hearing and the employees requested that they be accompanied by Mr Lean, an elected official of Unite. The Respondent refused the request and the Claimants were instead accompanied by a colleague (who was not a union official). When the Claimants were unsatisfied with the outcome of their grievance, they were accompanied at the appeal by a union official (not Mr Lean).

The Claimants brought claims for a breach of section 10 of the Act.

The EAT found in favour of the Claimants. The EAT decided that the wording of the Act stipulated that it was the request itself that had to be reasonable, not the choice of the companion. It therefore departed from the ACAS Code. It also disagreed with the Respondent’s argument that the Claimants had waived the breach in agreeing to choose a different companion.
The EAT considered that only nominal compensation should be awarded to the Claimants because they had suffered no loss. The EAT refused to award the maximum two weeks pay (capped at £450 per week) to each employee and recommended that a nominal amount, in the traditional sum now replacing 40 shillings, namely £2 would be more appropriate. The EAT remitted the case to the Tribunal to assess the level of award.

Commentary

This is an unsatisfactory decision for employers, particularly as it contradicts the current ACAS Code. As a result employers will no longer be able to refuse an employee’s choice of companion as being unreasonable, if they are a co-worker, a union representative or trade union official. This may require a departure from the employer’s own policy and could lead to problems or delays if the companion is based at another site or is likely to disrupt the meeting.

The EAT did not provide guidance on when a request would not be reasonable or discuss the implications of a companion disrupting or prejudicing the meeting.

As set out above, the maximum compensation for a breach of the right to be accompanied is two weeks pay (currently capped at £450 per week). As employees will now have to pay a fee to bring such a claim, this may act as a deterrent for employees to pursue such a claim, particularly when the EAT recommended that a nominal figure of £2 be awarded.

We will send a further update once the ACAS Code has been amended or guidance published and provide recommendations on what employers should do to revise their own policies.