Most employers are aware that employees have the right to be accompanied to certain meetings (including disciplinary and grievance hearings) by a colleague or trade union rep and that failure to allow a companion can contribute to a finding of procedurally unfair dismissal. However, some employers are not aware that this is a standalone statutory right which, if breached, can give rise to a separate award for damages of up to two weeks’ pay.
That being said, there was little judicial guidance for employers to gauge how far the right extended and the financial liability of breaching the right until the 2013 EAT case of Toal v GB Oils Ltd. In that case Mr Toal had been denied his chosen companion on the basis that the employer thought the choice unreasonable. The EAT held that this approach was not correct and that the statutory right should be applied strictly. Provided the companion fits the statutory test of being either a colleague or trade union rep, the employer cannot refuse to allow the companion to attend the meeting. The EAT did not decide the amount of damages, remitting the case to the employment tribunal to decide this point. However it suggested that the employment tribunal could award a nominal sum of, for example, £2.
That approach has been followed by a recent employment tribunal in Gnahoua v Abellio London Ltd. Mr Gnahoua sought to be accompanied by a union official who, in the employer’s opinion, had been disruptive, vexatious and dishonest while carrying out his role. The tribunal accepted the employer’s reasoning and restricted damages to £2, finding that Mr Gnahoua had not suffered any loss or detriment as a result of the employer’s decision.
This case should give employers comfort that a decision to restrict an employee’s choice of companion is unlikely to have significant financial consequences. However, employers must have good reasons for their decision if they hope to be in a position to convince a tribunal to reduce any award. In addition, employers should avoid failing to offer the right of accompaniment altogether, since this could affect the procedural fairness of any dismissal that follows.