Can employers have a say in who an employee is accompanied by?

  • Disciplinary
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Peninsula Group, HR and Health & Safety Experts

(Last updated )

The employment tribunal had to consider whether an employer had breached an employee’s right to be accompanied at a formal hearing when they specified that the employee’s chosen companion was not allowed to attend, although permitting a different companion.

 The claimant, in Shoaib-Brown v IQVIA IES UK Ltd, was invited to a grievance appeal meeting and, separately, a disciplinary hearing within approximately two weeks of each other. Both of these meetings attracted the statutory right to be accompanied, meaning the claimant was legally permitted to bring a companion.

 His chosen companion for these meetings, and all relevant formal hearings and meetings leading up to them, was the same representative from the EFWU union.

However, the respondent decided to exclude the chosen companion from the two formal meetings, saying that he had been rude and disruptive.

The companion had interrupted the meeting chairperson, had responded “then leave” when it was raised that he had been obstructive, and had accused someone in the employer’s organisation of abusing their position.

The respondent made clear that they were satisfied for the claimant to be accompanied by someone else.

 The Employment Tribunal decided that the claimant’s legal right had been breached. It said:

 “…the statutory right is the right to be accompanied by an individual chosen by the employee from within a specified class of individuals. The statutory right does not provide for the Respondent having a veto over who can accompany the employee.”

 This confirms the position that has been in place since the case of Toal v GB (Oils) Ltd in 2013 which triggered a change in guidance on the employer’s ability to have a say in who the companion can be. In essence, the choice is purely that of the employee, provided the companion falls into the definition of statutory companion.

 The matter for the ET to decide therefore was the level of compensation that was due to the employee. Under the Act, the entitlement was up to two weeks’ pay for each breach. As there had been two breaches, this amounted to 4 weeks pay.

 However, the companion’s behaviour was called out for criticism. Whilst it was accepted that they did have some genuine concerns about the respondent’s procedure, the manner in which they conducted themselves was inappropriate. Therefore, the ET reduced compensation by one week’s pay.

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