A tribunal awarded nominal compensation of £2 for not permitting an employee to be accompanied by his choice of representative where the employer had "strong reasons" for doing so.

The Facts

Mr Gnahoua was a bus driver employed by Abellio London Ltd. Following a disciplinary process, he was found to have been using his iPad while the bus was moving, and was dismissed for gross misconduct. He wished to be accompanied by one of two brothers, either Mr Francis Neckles or Mr John Neckles, both of whom are union officials. However, Abellio had a policy of refusing to allow these representatives to accompany employees at disciplinary or grievance hearings. One brother had been dismissed for intimidating and harassing another employee. He had brought a claim against Abellio, and he had been represented at the tribunal by his brother. His claims had been struck out on the grounds of vexatious conduct, the judge having found that the brothers had falsified the date of a witness statement. The judge had also taken the very serious step of awarding £10,000 in costs against both brothers for vexatious conduct.

Mr Gnahoua presented various claims against Abellio, including unfair dismissal and race discrimination. His claims were largely struck out. The tribunal agreed that his right to be accompanied had been breached. However, it did not consider that Mr Gnahoua had suffered any loss or detriment over and above having been unaccompanied at the appeal meeting. It made it clear that it did not criticise Abellio for its actions, and commented that Abellio had only interfered with his choice of companion for "strong reasons". The tribunal therefore awarded the nominal sum of £2 for breach of the right to be accompanied.

What does this mean for employers?

Employees have an unfettered right to choose a companion so long as the companion is an employed or certified trade union official or a colleague. The employee's choice does not have to be reasonable, in spite of a suggestion in the ACAS Code that it should. In this case, the choice was far from reasonable, but Abellio was still in breach of the legislation. There may be unusual circumstances in which employers, like Abellio, feel that the reasons for turning down the choice of candidate are so strong that they will risk claims of breach. If they do so, employers must take extra care when conducting the grievance or disciplinary meeting to ensure that the employee does not suffer any detriment or loss.

Gnahoua v Abellio London Ltd ET/2303661/2015