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We have recently had a number of queries relating to whether an employer is allowed to refuse their employee’s choice of companion at a grievance or disciplinary hearing.

Under Section 10 of the Employment Relations Act 1999, workers have a statutory right to be accompanied by a trade union representative or a fellow work colleague of their choice at a disciplinary or grievance hearing. Where an employer fails to comply with this right, the worker may bring a Tribunal claim.

Until recently, it has been accepted that an employer can refuse an ‘unreasonable’ choice of companion, even where the chosen companion meets the description of a trade union representative or a colleague in line with the statutory right. The ACAS Code of Practice seemed to confirm this by giving sensible examples of situations where it would not be a reasonable choice such as “a companion whose presence would prejudice the hearing” or “a companion from a remote geographical location”. However, recent cases have changed this position.

In the case of Toal and another v GB Oils Ltd, Mr Toal and Mr Hughes (the employees) raised grievances with their employer, GB Oils Ltd. They asked to be accompanied by a particular union official but GB Oils Ltd refused this request. The employees each made a claim to the Employment Tribunal for breach of their section 10 right.

The case progressed to the Employment Appeal Tribunal (EAT). The EAT said that an employee’s right to choose a companion was an absolute right, subject only to the limitations imposed by statute (i.e. that the companion is a trade union representative or a fellow work colleague). The EAT confirmed that there is no requirement for an employee’s choice of companion to be reasonable, provided that the companion falls within one of the two permitted categories.

Since the case of Toal, the EAT has looked at this principle again in the case of Roberts v GB Oils Ltd, which involved the same employer.

The facts in the case of Roberts are similar to Toal but related to a disciplinary hearing, rather than a grievance hearing. Mr Roberts was refused his first choice of companion to accompany him at a disciplinary hearing.

The EAT followed the decision in Toal and confirmed that the employee has an absolute right to choose their companion, regardless of whether the employer feels it is a reasonable choice or not. Strictly speaking this decision means that employers should not refuse an employee’s choice of companion (provided of course they have chosen a trade union representative or fellow work colleague to accompany them) at a disciplinary or grievance hearing. However, an employer may well have legitimate concerns about a choice of companion, for example where the companion has been involved in the events which led to the disciplinary/grievance hearing or would in some way potentially prejudice the fairness of the hearing.

In that situation, an employer may decide that it is necessary to breach the employee’s absolute right to bring a union representative or fellow worker of their choice as their companion, in the interests of overall fairness. The EAT has noted that there will be situations where it is accepted that the employer has technically breached the employee’s right, but the employer has good reason for doing so and the employee has not suffered any detriment or loss as a result of this breach. In those circumstances, the employee’s compensation could be reduced to nil. In any event, even if compensation is awarded to an employee for this breach, it is capped at a maximum of 2 weeks’ gross pay so in some situations, it may be that an employer decides to breach the employee’s right in order to ensure that the fairness of the hearing is not prejudiced.

It is worth noting that ACAS is amending its Code of Practice in light of the above case law.