Reasonableness and the right to be accompanied

Toal & Hughes v GB Oils Ltd 2013 [UKEAT/0569/12]

Mr Toal and Mr Hughes raised grievances with their employer, GB Oils Ltd (GB Oils). GB Oils invited each of them to grievance meetings. Both Mr Toal and Mr Hughes asked to be accompanied by a trade union representative.  GB Oils refused. The case report does not explain why. Ultimately, Mr Toal and Mr Hughes were accompanied by a work colleague at their respective grievance meetings and a different trade union representative at their grievance appeal hearings.

Mr Toal and Mr Hughes claimed that their right to be accompanied had been breached. They said that only the right to request had to be reasonable, not the person they chose.  GB oils countered that the chosen companion had to be reasonable too. GB Oils also said that any breach there had been had been waived by Mr Toal and Mr Hughes as they were accompanied to their grievance meetings and appeal hearings.

The EAT clearly set out its view of the statutory scheme:

1. The employer invites the employee (or worker) to attend a disciplinary or grievance hearing.
2. The employee (or worker) has the right to make a reasonable request to be accompanied.
3. If a request is made the employer must allow the employee (or worker) to be accompanied.
4. The employee (or worker) chooses the companion.
5. The companion must be one of two types of trade union official or a work colleague.
6. If the companion cannot attend the hearing must be delayed by up to five days.

Paragraph 36 of the Acas Code of Practice on Disciplinary and Grievance Procedures says ‘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 was not persuaded by this.

The right to choose the companion was the employee’s and the employee’s alone, provided only that the person they choose is a trade union official or work colleague. The EAT concluded this right was breached by GB Oils.

The EAT went on to consider if Mr Toal and Mr Hughes waived this breach by going to the meetings and hearings with other companions. The EAT said no.

We cannot underestimate the importance of this case.

Each and every people manager must review its approach to requests to be accompanied straight away. This case makes it clear that the employer has no right to interfere with the employee’s choice of companion unless that companion is not a trade union official or work colleague.

The case also makes clear that there is still a breach if the companion is refused and the employee is accompanied by someone else. We hope this will not happen but this case may lead to claims by employees who have been refused their choice of companion in the last two to three months.

As an aside, the EAT considered what compensation to award – compensation for breach of the right to be accompanied is capped at two weeks’ pay. The EAT did not decide compensation but made clear that awarding no compensation was not an option. The EAT said that even though Mr Toal and Mr Hughes suffered no loss or detriment (they were accompanied after all) something, probably nominal, should be awarded.

Acas has announced that it will be amending the code of practice as a result of this case. Subscribe to hrlegalnews so you know when and how the code is amended.