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Disciplinary and Grievance hearings and the right to be accompanied

A common topic that is consistently put to employment lawyers, both by employers and employees, is who can attend a disciplinary or grievance hearing as an employee companion?

This question is generally then followed by a description of an unusual request for an employee’s neighbour, mother, long-lost cousin or dog-walker to accompany them to their hearing. An employer is free to concede to such requests if they are ‘reasonable’ and most commonly where it is likely to aid in the smooth running of the hearing.

The specific legislation (section 10 of the Employment Relations Act 1999 “ERA 1999”) does of course provide only for a trade union official or co-worker to accompany an employee in such hearings.

What then is the position when an employee is refused their first choice of companion?

This question was recently answered in the Employment Appeals Tribunal (“EAT”) case of Toal v GB Oils Ltd. Here two employees sought to progress grievances and elected for a particular trade union representative to accompany them. The employer declined to allow this representative to attend with each of them (no reasons for this declination are given in the EAT judgement), and so the two employees selected a co-worker to attend instead.

Subsequently the outcome of their respective grievances were unsatisfactory and so the two employees then sought to bring a claim for compensation against their employer for breach of their statutory right to be accompanied by a representative of their choosing under the ERA 1999.

The original Employment Tribunal held that in electing for their colleague to attend the grievance hearing with them, that the two gentleman had in effect waived the breach of their rights to be accompanied by a companion of their choice and so found in favour of the employer.

On appeal the EAT rejected this approach and confirmed that by opting for another companion, the employees did not waive the right to be accompanied. As above the ERA 1999 restricts the categories of who can accompany, however within those categories the companion can be whomever the employee wishes.

Conclusion

The EAT therefore remitted the matter to the original tribunal for compensation to be assessed. Although no result has been returned yet following the remittal, the ERA 1999 provides that any such compensation should be linked to the loss and detriment suffered by the employee. If, as may be the case here, there has been no quantifiable loss or detriment, then the two employees above can look forward to the princely sum of 40 shillings, or perhaps more likely, two pounds.   

If you need help and assistance with dealing with a disciplinary or grievance hearing please do not hesitate to contact me on 0113 350 4030 or at samira.cakali@scesolicitors.co.uk


Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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