The Right to be Accompanied - A Choice that is the Worker's Alone

30 Jan

A worker’s right (under Section 10 of the Employment Relations Act 1999) to be accompanied at a disciplinary or grievance hearing does not often come on to the radar, unless the worker concerned makes a Section 11 complaint to the tribunal that the statutory right has been breached. Twice in 2013, however, different divisions of the EAT had to deal with the proper meaning of Section 10.

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Disciplinary

A worker’s right (under Section 10 of the Employment Relations Act 1999) to be accompanied at a disciplinary or grievance hearing does not often come on to the radar, unless the worker concerned makes a Section 11 complaint to the tribunal that the statutory right has been breached. Twice in 2013, however, different divisions of the EAT had to deal with the proper meaning of Section 10.

The right to be accompanied allows a worker to be accompanied by a single companion, chosen by the worker, and who must be either a trade union official employed by that union, a certified trade union official or another of the employer’s workers. The worker is allowed to confer with his/her companion during the course of the hearing. If a chosen companion is not available at the time proposed by the employer, and the worker proposes another time for the hearing that is both reasonable and is no later than the end of 5 working days beginning with the first working day after the day proposed by the employer, then the employer must postpone to that alternative proposed time.

The right only arises where the worker “reasonably requests” to be accompanied. What does “reasonably” mean in this context? Does it mean that an employer can refuse to allow a worker to be accompanied where there is a legitimate, strongly-held objection to a particular choice of companion? (For example, the chosen companion is known to be disruptive.) Or is it narrowly confined to the right to be accompanied at all?

In Toal & Hughes v GB Oils Ltd and, more recently, Roberts v GB Oils Ltd, the EAT has confirmed that the latter construction is correct. The choice of companion is the worker’s alone, and cannot be interfered with – no matter how unpalatable to the employer - unless the chosen companion does not fall into the statutory classes of persons. Significantly, in reaching that conclusion, both divisions of the EAT have expressly declined to follow the ACAS code of practice to the effect that reasonableness does include issues of choice of companion.

The EAT in Roberts expresses some unease as to whether its construction of Section 10 “holds the balance fairly in an industrial context”. Be that as it may, an employer who declines to accept a worker’s choice of companion – so long as that companion falls into one or other of the classes set out in Section 10 –risks a complaint to the tribunal under Section 11 and award of up to 2 weeks’ pay.


Peter Savill

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