The right to be accompanied in disciplinary proceedings

Roberts v GB Oils Ltd | 2013

Mr R was a tanker driver. He was invited to a disciplinary hearing and later an appeal hearing. Mr R asked to be accompanied to both by a lay official, Mr Lean. For reasons unknown, Mr Lean and GB Oils were in an ongoing dispute and GB Oils refused to allow Mr R to be accompanied by Mr Lean.

Mr R was accompanied to the disciplinary hearing by another companion, Mr Draper. There was protracted correspondence attempting to agree a date for the appeal hearing due to the availability of Mr Draper and the Chair of the appeal hearing. Mr R did not make any effort to be represented by anyone other than Mr Draper and the appeal hearing went ahead on two occasions. Neither Mr R nor Mr Draper attended either meeting.

Relying on an earlier EAT decision, involving a Mr Toal and GB Oils, the EAT overturned the employment tribunal decision that Mr R’s right to request to be accompanied had not been breached. The EAT decided that Mr R had chosen to be accompanied by Mr Lean and GB Oils prevented him from doing so. That was a breach.

The EAT went on to conclude that the employer was not without any ‘safeguard … against wanton selection of a companion’. The employers safeguard was the level of compensation awarded.

We remain sceptical about this interpretation, as it seems were the EAT. The EAT recognised the difficulties that employers may face, including requiring the presence of companions historically proven to be disruptive – whether physically or verbally. Whatever the issues employers may face it looks like the interpretation is set to remain – at least for now – and each and every people manager must review its approach to requests to be accompanied.

Employers should proceed on the basis that they have no right to interfere with the employee’s choice of companion unless that companion is not a trade union official or work colleague. Any employer who does risks a claim against them.

The saving grace, however, is that compensation for breach of the right to be accompanied is capped at two weeks’ pay. Employees are therefore unlikely to bring a claim solely for a breach of the right to request to be accompanied. If they do, the employer is not without a response. The EAT was satisfied that, if an employer is justified in refusing a companion, the award to the employee will be appropriately reduced. This should discourage employees yet further.