Who can a worker have as a chosen companion?

A worker’s choice of companion at a disciplinary or grievance hearing can be controversial. Whilst the law specifies the groups from which a companion must come, employers have tried to limit this right further, with little success.

The law

The Employment Relations Act 1999 sets out that a worker can be accompanied by a person if they are employed by a trade union of which they are an official; an official of a trade union whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings or another of the employer's workers. The worker must also reasonably request to be accompanied.

The guide to the Acas code of practice on disciplinary and grievance procedures explains this further. It says: “Employers must agree to a worker’s request to be accompanied by any companion from one of these categories…a worker may choose to be accompanied by a companion who is suitable, willing and available ...” and “To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case…”

An unfettered right

The Acas code specifies that the employee’s choice of companion must be reasonable, and suitable for the purposes of the meeting. This has led to the question: who determines the reasonableness of the choice of companion. The employer or the employee?

Toal v GB Oils in 2013 dealt with this. In this case, an employee was invited to attend a grievance meeting. His choice of companion was an elected official of the Unite union, who was appropriately certified. Despite this, the employer refused to allow this companion to attend. As a result, the employee chose another companion instead. Unsatisfied with the outcome of the grievance and subsequent appeal, the employee raised a claim including a breach of the right to be accompanied.

The employee was unsuccessful at Employment Tribunal (ET), where it was held that the potential breach was waived when the employee agreed to bring an alternative companion. On appeal, the employer argued that ‘reasonableness’ applied to the employee’s choice of companion. This was rejected by the EAT, who held instead that ‘reasonableness’ in fact refers to the accompaniment itself, and not the choice of companion. Had the intention of the legislation had been to allow the employer to have a say in the choice of companion within the specified categories, then it would have said so. The decision of the ET was therefore overturned. 

Toal was subsequently used in Shoaib-Brown v IQVIA, where an employer’s refusal to allow a chosen companion was again found to be in breach of the law. This was despite the ET’s acknowledgement that the chosen companion was particularly disagreeable and disruptive; this was dealt with instead by a reduction in the compensation by one week’s pay.

Note that in some circumstances it may be reasonable to widen the scope of the choice of companion, especially where the employee invited to the meeting has additional needs that a companion compliant with the law may not meet, such as in the case of a disability, where the employee is young and may not understand the gravity of the situation or where English is not the workers first language.