Risks in not allowing accompaniment to formal meetings

It is often a matter of sheer uncertainty for employers and a regularly cited request of employees in formal meetings. As per section 10 of the Employment Relations Act 1999 (ERelA 1999), the right to be accompanied by a work colleague or trade union representative is limited to a disciplinary or grievance hearing, however it is often prudent for employers to allow such accompaniment in formal meetings.

Section 10 ERelA 1999 is considered by a tribunal in the context of when a worker is required or invited by his employer to attend a disciplinary or grievance hearing and the worker reasonably requests to be accompanied at the hearing.

Where section 10 ERelA 1999 is triggered, the employer must allow the worker to be accompanied at the hearing by either a trade union representative or a work colleague of the worker’s choosing.

If the employee does exercise their right to accompaniment but his chosen companion is not available at the time proposed for the hearing and the worker proposes an alternative time, then as long as the alternative time is reasonable and falls before the end of the period of five working days from the day after the originally proposed date, the employer must postpone such hearing to the alternative time.

Although the right to be accompanied as per the ERelaA 1999 is limited to hearings within a disciplinary or grievance context, it is advisable for employers to consider offering such accompaniment to other meetings; such as meetings involving redundancy consultations, flexible working requests and so on in order to show that the employer has acted reasonably and fairly in terms of any process adopted.

If an employer fails to allow accompaniment to a worker in circumstances where they would be entitled under section 10 ERelA 1999, then a complaint may be presented to the tribunal that the employer has failed to comply. If a complaint is upheld by the tribunal, an award of up to two weeks’ pay may be granted.

In the recent case of Gnahoua v Abellio London Limited ET/2303661/2015, the tribunal had this very issue to consider. In this case, the Respondent (Abellio London Limited) had a policy of refusing to allow two brothers to stand as accompaniment to their employees at disciplinary or grievance meetings. The brothers were trade union officials where one of them had previously brought proceedings against the Respondent in a separate matter where costs were awarded against him due to vexatious conduct. This conduct had involved falsifying witness evidence.

The Respondent therefore believed that the two trade union official brothers had attempted to obtain substantial compensation from the company as a result of bringing the prior proceedings and using dishonest means to obtain such compensation. Therefore, it was decided that the Respondent would ban the brothers from acting as accompaniment.

The tribunal in the instant case of Gnahoua v Abellio London Limited made a finding that the Respondent’s policy in not allowing the brothers to stand as accompaniment to the employee did breach the employee’s rights under section 10 of the ERelA 1999, however the tribunal could not determine any loss or detriment suffered by the employee as a result of the breach as the Respondent had conducted the hearing in a considerate and thorough fashion with the employee. The tribunal therefore awarded the employee nominal compensation of £2 and his subsequent claim for detriment under section 12(2) ERelA 1999 was dismissed.

Conclusion

The judgement above stands as a stark reminder that where a breach of the worker’s right to be accompanied has occurred, the employer should be able to evidence a clear and thorough process being adopted in order to avoid any significant claim for detriment as a result. Where breach of the right to be accompanied is established, an element of compensation will be awarded. Accordingly in a case in which the tribunal is satisfied that no loss or detriment has been suffered, the tribunal is likely to feel constrained to make an award of nominal compensation only.

Please note however that where an employee is successful in establishing that a dismissal from employment was as a result of them asserting a statutory right, the risk still stands that such dismissal may be found to be automatically unfair by a tribunal.

As always please do not hesitate to get in touch with myself or another member of the team.