Roberts v GB Oils Ltd
In the above case, the Employment Appeal Tribunal (“EAT”) decided that a worker’s right to be accompanied at a disciplinary or grievance hearing is limited only by the reasonableness of the request to be accompanied, not in the choice of the actual companion.
On this occasion, the Claimant was refused his first choice of companion at a disciplinary hearing, at which he was fairly dismissed for misconduct, and failed at the Employment Tribunal in his claim that his right to be accompanied had been breached.
Upholding the Claimant's appeal, the EAT followed its own earlier decision in Toal v GB Oils Ltd and held that the legislation was clear in stating that an employee has the right to be accompanied by any work colleague or trade union representative, even if the employer does not think that person is a reasonable choice. This contrasted with the ACAS Code of Practice, which pointed to a broader interpretation of 'reasonable' extending to the choice of companion.
The EAT observed, however, that there was a safeguard for an employer against a worker's wanton choice of an unsuitable companion, as an Employment Tribunal could, in such a situation, reduce compensation to the worker to nil.
In Practice
Employment Partner, Kate Fretten, says “These recent decisions will come as a shock to a lot of employers, many of whom have been following ACAS’ advice in refusing a chosen companion if they reasonably believe that person is unsuitable. It is now clear that an employee has an absolute right to choose any work colleague or trade union representative. Indeed ACAS is in the process of amending their Code of Practice to deal with these decisions. It may make it awkward for employers in certain situations, for example if an employee asks for a work colleague to accompany them who is currently working overseas.”
At Frettens, all of our solicitors offer a free initial meeting to chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.