No right for employers to refuse employee’s choice of colleague or trade union representative

The Employment Appeal Tribunal has held that an employer cannot refuse an employee’s request to be accompanied at a hearing on the basis that the employee’s choice of colleague or trade union representative is unreasonable.

It was previously thought that an employer could refuse a worker’s choice of companion if the employer could show that the choice was unreasonable. However, it now appears that providing the employee chooses a colleague or trade union representative, the employer has no right to refuse their choice of representative.

In the case of Toal and another v GB Oils Ltd, GB Oils refused the request of Mr Toal and Mr Hughes to allow them to be accompanied by an official of Unite, Mr Lean.

The Employment Relations Act 1999 requires an employer to permit a worker to be accompanied by a trade union representative or colleague where the worker “reasonably” requests to be accompanied.  GB Oils’ argued that the word “reasonably” applied both to the choice of representative and to the requirement to be accompanied. In support of this argument, they pointed to the ACAS Code of Practice on Disciplinary and Grievance Procedures which suggests that the choice of companion should be reasonable.  However, the EAT rejected this argument on the basis that when passing the Employment Relations Act 1999 Parliament had chosen not to use express words for requiring the choice of companion to be reasonable and that the ACAS Code could not be used to help the EAT decide what the law meant.

This decision means that, even where a particular choice of companion might prejudice a disciplinary or grievance hearing, employers may no longer refuse a particular companion by claiming that the employee’s choice is not a “reasonable” one.  In the light of this decision, it isn’t easy to see when an employee’s request to be accompanied will be unreasonable

The EAT also made some comments about the amount of compensation payable in the event that there has been a breach of this right.  The EAT highlighted that the law only provides for compensation and not a penalty or fine.  So, in looking at what compensation to award, a tribunal needs to look at what loss or detriment has been suffered.  Compensation is limited to a maximum of  two weeks’ pay but the EAT also said that there must be some compensation awarded in each case even if it is only nominal - £2 or some other small sum is what the EAT suggested.

In this case the EAT held that it would be sent back to the Employment Tribunal to determine the exact amount of compensation. This part of the decision is helpful to employers as it suggests that where there has been no real loss or detriment, only minimal sums will be awarded.

This case may be a concern for employers who wish to refuse a particular representative because their presence may prejudice the outcome of the hearing. The financial risk in refusing a particular representative in those circumstances may still be low provided the refusal to allow the particular representative doesn’t materially disadvantage the employee.

For more information

For more information or advice on this issue, or other issues with disciplinary and grievance hearings, please contact Doug Mullen on 0121 212 7432 or douglas.mullen@anthonycollins.com.