The law gives a worker a right to be accompanied at a disciplinary or grievance hearing where he reasonably requests to be accompanied. Previous case law has decided that the choice of companion does not have to be reasonable so long as they meet the statutory definition of being a fellow worker or trade union official. Another case has proven how difficult it remains for an employer to refuse an employee’s chosen companion during the disciplinary process.
In Gnahoua v Abellio London Ltd disciplinary proceedings were started after a bus driver was caught using an iPad whilst his bus was in motion. He attended a disciplinary hearing with a union representative where he was informed this was an act of gross misconduct and was dismissed without notice. The claimant appealed and decided that he would be represented by the PTSC Union at his appeal hearing. This union was led by two brothers who were subject to a policy that they were not allowed to represent workers in disciplinary or grievance hearings because of past threatening behaviour and dishonesty against the company.
The company notified the claimant that they were happy for him to be represented by the union but the brothers had been banned from appearing in hearings. The claimant attended his appeal with both brothers as companions where he was told the hearing would be adjourned and a letter was sent to him that his choice of representative was subject to certain conditions. Exchanges between the parties followed with the claimant adamant that he would be accompanied to the meeting and the company urging him to seek another representative from the union. The claimant ended up going to the appeal hearing alone but he refused to engage in the process without a representative. The outcome of the appeal was that the dismissal was confirmed due to the company having a zero tolerance policy on using electronic devices.
The Employment Tribunal highlighted that the policy reasons behind the right to be accompanied can lead to a harsh outcome for an employer but there is a strict rule that it is undesirable for an employer to choose the companion or exercise a veto over the choice. They made no criticism of the employer’s actions, recognising they had followed the Code of Practice and only sought to interfere on very strong grounds. However, the case law shows that the choice does not have to be reasonable and they breached the employee’s right to be accompanied.
However, they found that the employee suffered no loss or detriment, and was not subject to a detriment on the grounds he made the request to be accompanied, so he was awarded compensation of £2.
Education Business Partner, David Carey says “This case emphasises how important it is that an employee must be allowed to be accompanied by their chosen companion, however, where there are strong grounds, employers may try to agree that the employee chooses another but they cannot enforce this or treat the employee less favourably.”