20 December 2013 #Employment
The Employment Appeal Tribunal has confirmed (Roberts –v- GB Oils Ltd UKEAT/-177/13/DM) that an employee invited to a disciplinary hearing should be allowed to be accompanied by a work colleague or trade union official of his choice. The employer should not reject the requested companion on the basis that they consider the companion to be unsuitable.
The appellant, Mr Roberts, had been invited to a disciplinary hearing. He chose to be accompanied to this by a Mr Lean, who was a trade union lay official. The employer made it clear that Mr Lean would not be permitted to accompany him, Mr Lean being banned from meetings and from any of the employer’s sites. Mr Roberts accepted this and agreed to be accompanied by a more senior trade union representative. The outcome of the disciplinary hearing was Mr Robert’s dismissal.
Mr Roberts appealed against his dismissal, and again sought to be accompanied by Mr Lean. Mr Roberts however accepted that the previous more senior trade union representative accompany him. In the event, there were then problems in finding suitable dates for all parties resulting in two appeal hearings being organised at which Mr Roberts failed to attend.
As part of his claim of unfair dismissal, Mr Robert’s claimed that he was prevented from being accompanied during the disciplinary process by a companion of his choice contrary to section 10 of the Employment Relations Act 1999 (as amended).
Initial decision by the Employment Tribunal
The Employment Tribunal held that Mr Robert’s had been fairly dismissed. It also held that there had been no breach of section 10 of the ERA.
Employment Appeal Tribunal finding
Mr Robert’s appealed against the Tribunal’s finding that there had been no breach of his right to be accompanied by a companion of his choice. The Employment Appeal Tribunal (EAT) therefore considered this point.
In reaching its decision, the EAT noted that there had been an earlier EAT decision (Toal & Hughes v GB Oils Ltd  IRLR 696) which had involved the same employer and in which the claimants in the case had sought for the same Mr Lean to accompany them. In that earlier case the EAT had concluded that section 10 of the ERA provided the employee with a choice of whom to be accompanied by provided that the companion fell within the definition of being a trade union official or another of the employer’s workers.
The EAT in the current case determined that the wording of section 10 of the ERA did not mean that the identity or characteristics of the person chosen by the employee had to be reasonable. The EAT therefore confirmed the earlier EAT decision.
Employers should be aware of preventing an employee from taking their companion of choice to a grievance or disciplinary hearing. However, in circumstances in which the employer considers the employee’s chosen companion to be unsuitable (i.e. perhaps because the companion is also subject to disciplinary action), the employer may wish to take a commercial risk. The compensatory limit for a breach of section 10 is two weeks’ pay. Also, where the employer’s decision for the refusal is reasonable, this should be taken into account by a Tribunal when determining an appropriate level of compensation, and indeed, the EAT indicated that such protection for the employer should be available.
The current case has now been remitted to the Employment Tribunal for them to assess compensation. We await that decision.