Toal and another v GB Oils Limited (August 2013)

The background

Where an employer requires or invites an employee to attend a grievance or disciplinary hearing and the employee reasonably requests to be accompanied at the hearing the employer must permit the worker to be accompanied. The companion must be an appropriate union representative or fellow worker.

In this case two employees were invited to grievance meetings. Both wanted to be accompanied by a particular union official. The employer refused to allow that official to accompany them. In the end, they were both represented by a fellow worker at their hearings instead and then by a different union official on appeal.

The decision

The EAT confirmed that an employee has an absolute right to choose their companion. The word "reasonably" did not apply to the choice of representative.

By contrast, the ACAS Code of Practice on Disciplinary and Grievance Procedures provides 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 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 decided that the relevant paragraph from the ACAS Code should not be used to interpret the statute which they considered set out the position perfectly clearly. The EAT emphasised that the companion is to be chosen by the worker, not by the employer.

However, breach of the right allows the worker to make a complaint to the Tribunal and where a Tribunal finds a complaint is well founded "it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks pay".

The EAT made clear that where the employer has been in breach of the obligation it must go on to assess the loss or detriment suffered by the employee in consequence. However, the sting in the tail for the employee was that if the employee suffered no loss or detriment then only a nominal award of compensation could be made – in this case, something like £2.

What does this case tell us?

Your capability procedure and practices may reflect the ACAS code. There is an apparent conflict between the EAT decision and the ACAS code. Though the right to choose a companion is absolute, there may be circumstances when you do wish to object to that choice. Assuming an alternative person can be and is appointed the financial risk may be limited given the EAT’s view that only a nominal award is likely to be appropriate if the right to a chosen companion is denied.