The right to be accompanied

The recent case of Toal and Others v GB Oils Ltd reminds us of the extent of an employees’ right to choose their companion in grievance proceedings.

This case involved two claimants, Mr Toal and Mr Hughes, who both raised grievances against their employer, GB Oils Ltd. They were invited to separate meetings to discuss their grievances. Both Toal and Hughes wanted to be accompanied in their meetings by Mr Lean, an elected official of Unite (of which both claimants were members).

GB Oils Ltd refused to allow Mr Lean to accompany either of the claimants. Both were therefore represented at their respective hearings by a fellow worker, Mr Hodgkin.

The claimants were both unhappy with their grievance outcomes and appealed, however neither appeal was successful.

On hearing that their appeals had been unsuccessful, the claimants then brought a claim in the employment tribunal for their employer’s failure to allow them to be accompanied by their chosen companion after receipt of a reasonable request.

The EAT held that section 10 Employment Relations Act 1999 gives an employee an absolute right to choose their companion, save that the companion must be an appropriate union representative or a fellow worker. There is no requirement that the employee’s choice of companion must be “reasonable”. Further, guidance contained in the ACAS Code could not be used to aid construction of the statute, which the EAT held was “perfectly clear” in this respect.

Finding that the claimant’s complaint was well founded, the Tribunal had been obliged to order that GB Oils Ltd pay the compensation of an amount not exceeding two weeks’ pay. The EAT gave guidance that the level of compensation should be determined according to the loss or detriment suffered by the employee in consequence of the failure to allow accompaniment. Where no loss or detriment was suffered, the compensation should be merely nominal.

This decision seems to conflict with guidance in the relevant paragraphs of the ACAS Code, which highlights circumstances where an employer may rightly wish to object to an employee’s choice of companion (for instance, where their presence would prejudice the hearing).

However, the point to take from this case is that while an employer should do everything possible to accommodate a request for a particular companion, if this isn’t possible, the financial risk is minimal.

Grievances unfortunately arise in all sectors, including the independent health sector, and the point of this case should be borne in mind when dealing with such grievances.