No, says the EAT in Toal v GB Oils Ltd.
At a grievance hearing the employer refused the Claimant his choice of companion, a Trade Union official. A substitute official accompanied the Claimant. The Employment Tribunal held that the Claimant had waived the breach of his right to be accompanied by choosing another companion.
The EAT rejected this approach: by choosing another companion, the Claimant did not waive the right to be accompanied. The right to a companion is limited only to the categories set out in s.10(3) Employment Relations Act 1999, and within that may be whoever the worker wishes. The EAT rejected the guidance at paragraph 36 of the relevant ACAS Code of Practice relating to the ‘reasonableness’ of the choice of companion as creating problems of its own.
The EAT remitted the matter to the same employment tribunal for compensation to be assessed, noting that the statute provided for compensation linked to the loss or detriment suffered by the worker, and it was not a penal provision. If there was no loss or detriment, only nominal compensation in the traditional sum of 40 shillings (£2 in new money) or a sum ‘of that order’ should be ordered (para 33).