Anthony Collins Solicitors are presenting a series of podcasts with employees to raise awareness about disabilities around the firm.
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 firstname.lastname@example.org.
Answering key questions about the details and practicalities of mandatory vaccinations in care home settings.
Anthony Collins Solicitors (ACS) has appointed a new partner to its market-leading social housing property team.
On 7 September 2021, the Regulator of Social Housing (RSH) published its annual consumer review.
From today (1 October 2021) there is yet more change on the possession front!
We are delighted to secure our position as a top-tier firm in five of our practice areas in the Legal 500 2022 edition.
This virtual event is an introduction to employee ownership.
Helen Tucker has been appointed a deputy district judge (DDJ) for the Midlands Circuit and will start sitting part-time in county courts from early 2022.
The monthly round-up from the Anthony Collins Solicitors charities team.
The CQC will conduct reviews on a monthly basis of all of the information they hold about services and will use these reviews to prioritise its activity.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.