Right to Be Accompanied

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Was the EAT correct to hold in Toal v GB Oils Ltd that a worker's right to be accompanied at a disciplinary or grievance hearing under section 10 Employment Relations Act 1999 is limited only by the reasonableness of the request to be accompanied, not in the choice of a companion under s10 (3)? 

Yes, holds a different division of the EAT in Roberts v GB Oils Ltd (the appeal involving the same employer). The Claimant was refused his first choice of companion at a disciplinary hearing at which he was fairly dismissed for misconduct, and failed at the employment tribunal in his claim for a breach of s10 Employment Relations Act 1999.

Upholding the Claimant's appeal, the EAT followed the earlier decision in Toal, despite reservations as its effect, and held that the statute was clear, after considering paragraph 15 of the relevant Acas Code, which pointed to a broader interpretation of 'reasonable' extending to the choice of companion.

The EAT observed however that there was a safeguard for an employer against a worker's wanton choice of an unsuitable companion, as an employment tribunal could in such a situation reduce compensation to the worker to nil.

There is uncertainty as to what the situation might be if a worker withdraws a request to be accompanied by a particular and substitutes a new request for a companion, this possibility was not raised at the employment tribunal.

The EAT remitted the matter of compensation up to the two-week's pay limit to the employment tribunal, but made no comment on the observation in Toal that quantum for a breach of this right might be in the order of forty shillings.