In the recent case of Toal v GB Oils, the EAT decided that the right to be accompanied under section 10 of the Employment Relations Act 1999 must not be limited by the companion being a reasonable person to attend the meeting, rather the request itself must be reasonable. The EAT found that employees had an absolute right to be accompanied by anyone they choose, providing that they fell in the appropriate categories i.e. fellow worker or a trade union representative. They concluded that the ‘reasonable request’ was the method in which the request was made.
This decision reflected poorly on the Acas Code of Practice on Discipline and Grievance Procedures, which stated that:
‘To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site’
The EAT in the case found that this was an incorrect interpretation of the legislation, as the employee has the right to choose any companion of their choice. Therefore ACAS have started to consult on alternative wording below:
‘To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case, although workers are free to choose any fellow worker, trade union representative or official as set out in paragraph 14 (or 35) as a companion. In making their choice, however, workers should bear in mind the practicalities of the arrangements. Thus, it may neither be sensible nor helpful to request accompaniment by a colleague from a geographically remote location when someone suitably qualified is available on site; nor to be accompanied by a colleague whose presence might prejudice the hearing or who might have a conflict of interest. A request to be accompanied does not have to be in writing or within a certain time frame but workers should consider how they make their request so that it is clearly understood and provides enough time for it to be considered by their employer’
By way of summary, it will now be much harder to reject a request for a companion even if you think this will be administratively burdensome or costly. You will be able to refuse if the request itself is short notice or alternatively does not provide sufficient information. Ultimately this clarification in the law, and now the guidance, means that the employer will rely far more heavily on the companion to decline to attend if they feel they are in conflict or inappropriate. It may therefore be worth updating your policies to brief companions on their role and responsibilities.
Furthermore, the EAT in the case made the point that the breach in this case of failing to let a Trade Union Representative attend, but then allowing a work colleague, was a minor breach. Although the EAT could have suggested an award of up to two week’s pay, they actually recommended an award of £2 or some other small sum. It gave guidance in the case that the employee had suffered no loss or detriment. Therefore we can speculate that although refusing a companion would be a technical breach, if this causes no loss to the employee, then the risk of a large compensation payment would be low. However a refusal could go to fairness of any dismissal in a disciplinary situation, therefore it may be a too high a risk for many employers in the light of this case.