Ben Doherty, Head of Employment, looks at the changes to an employee’s right to be accompanied at grievance and disciplinary hearings following the case of Toal and Another -v- GB Oils Ltd.
The Law Under s.10 of the Employment Relations Act 1999 (ERelA) states that:
“(1) …where a worker: (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing.
(2) …the employer must permit the worker to be accompanied at the hearing by a single companion who: (a) is chosen by the worker and is within subsection (3)…
(3) a person is within this subsection if he is: (a) employed by a trade union of which he is an official… (b) an official of a trade union… whom the union has reasonably certified in writing… or, (c) another of the employer’s workers.”
Under s.11 of the ERelA 1999 it states:
“(1) A worker may present a complaint to an employment tribunal that his employer has failed, or threatened to fail, to comply with section 10(2)…
3) Where a tribunal finds that a complaint under this section is well-founded it shall (order the employer to pay compensation to the worker of an amount not exceeding two weeks' pay.”
The Background Messrs Toal and Hughes raised grievances against GB Oils Ltd (GB Oils) and requested that they be accompanied by Mr McLean, an elected and appropriately certified member of UNITE. However Mr Gloag, the manager hearing the grievances, refused to allow Mr McLean on the grounds that he may prejudice the hearing.
Accordingly Messrs Toal and Hughes asked another elected UNITE official, Mr Hodgkin, to attend their grievance meetings. Neither grievance was upheld and both men appealed and replacing Mr Hodgkin with another certified UNITE official, Mr Silkstone.
Following the outcome of their grievance appeal both men lodged claims with the Employment Tribunal against GB Oils for a breach of s.11 of the ERelA 1999.
Decision At the Employment Tribunal (ET) the employees’ claims were rejected because they had chosen other suitably qualified companions to safeguard them during the grievance meetings and therefore, by continuing with a different certified companion both men had waived the potential breach.
However, on appeal the EAT found that the employees had an absolute right to choose their companion. The EAT indicated that the word “reasonably” in s.10(1) of the ERelA 1999 applied to the right to be accompanied but not as to the choice of companion.
GB Oils argued that the EAT should have regard to the ACAS Code when interpreting the statute, which states:
“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 is available on site”.
But, the EAT held that the ACAS Code was not an available aid in the construction of a statute.
Compensation The EAT went on to indicate that the compensation awarded should not be punitively applied against an employer, but instead provide recompense for any loss or detriment suffered by the employee. Ignoring the terms of s.11(3) of ERelA 1999, the EAT suggested that Messrs Toal and Hughes be awarded the traditional sum of compensation, previously 40 shillings (which is equivalent to £2) because no loss or detriment had been suffered.
Comment Ben Doherty, Head of Employment advises:
“The EAT’s decision, and the subsequent amendment of the ACAS Code, now mean that an employer cannot lawfully refuse a companion, even where they might prejudice the hearing or where it is geographically inconvenient to accommodate them.
However, the compensation awarded for failing to comply with this right is likely to be nominal, particularly where another similarly qualified companion is provided. Further, with the advent of fees in the Employment Tribunal system, freestanding claims of this nature are likely to be very rare.”
