Employers will welcome a tribunal decision that damages for failure to allow a chosen companion at a disciplinary hearing should be nominal where the companion was within the permitted statutory categories but unsuitable for other reasons.
In 2013 the EAT in Toal v GB Oils Ltd ruled that an employee had an unfettered statutory right to be accompanied to a disciplinary hearing by their chosen companion, provided that the companion was an employed trade union official, a certified trade union official or a colleague. Originally Acas guidance had suggested that, in relation to the entitlement to make a 'reasonable request' for a companion, a request would be unreasonable if the chosen companion was unsuitable, for example if they had a conflict of interest or were at a geographically remote location. This guidance was amended to reflect Toal, although Acas acknowledged at the time that “if the worker’s choice was designed to disrupt the process then the remedy for the employer’s breach of their right by refusing their choice of companion, might only be nominal. Moreover, there may also be a limited impact on any subsequent unfair dismissal case, as an employer’s refusal to allow an employee to be accompanied by their companion of choice would not necessarily make the dismissal procedurally unfair nor necessarily lead to any uplift in any compensation awarded.”
The recent tribunal decision in Gnahoua v Abellio London Ltd confirms that nominal damages may be appropriate in such cases: there, an award of only £2 was made for denial of the statutory right to a companion, where the chosen union officials had engaged in vexatious and dishonest conduct. As the employer had conducted the disciplinary hearing in a considerate and thorough fashion, going through his arguments and taking into account his long service, Mr Gnahoua had not suffered any loss or detriment.