- Directory of Members
The Employment Relations Act 1999 (ERA) confirms that an employee is entitled to be accompanied to a disciplinary hearing or grievance hearing where he “reasonably requests to be accompanied at the hearing”. Section 10 goes on to confirm that the employer must allow the employee to be accompanied by either an employed trade union official, a certified trade union official or a work colleague. There are occasions though where the employee’s right to be accompanied at these type of hearings can cause some difficulties to employers, for example:
The recent case of Gnahoua v Abellio London Ltd provides some clarification of those very issues. The key facts of the Gnahoua case can be summarised as follows:
After considering the issue, the employment tribunal confirmed that an individual’s choice of companion at a disciplinary hearing is absolute, provided that the companion falls within the permitted categories of the ERA. With this in mind, the tribunal upheld that there had been a breach of the claimant’s right to be accompanied. This was so even though the employer’s reasons for refusing the employee’s choice were considered to be perfectly understandable and reasonable. The tribunal also referred to appeal hearings being an integral part of the disciplinary process and did not accept that the right only applied to a disciplinary or grievance meeting. The wording of the ERA also states that an award must be made to the employee where a breach of the right to be accompanied had been upheld. A nominal award of £2 was made to Mr Gnahoua as a result. This award was consistent with the earlier case decision of Toal v GB Oils Ltd 2013, where the Employment Appeal Tribunal confirmed that only a nominal award should be made where no loss or detriment has been suffered. Whilst the case decision may seem unjust, it reaffirms that there is an unfettered right for the employee to choose a companion within the above permitted categories. Employers will need to keep this in mind when considering an employee’s request to be accompanied at a disciplinary or grievance hearing. This bulletin is for general guidance purposes only and should not be used for any other purpose.