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No reasonableness required when choosing a companion

Employment Law & HR
BG Purple

Workers have a statutory right to be accompanied to disciplinary or grievance meetings by a colleague or trade union representative.  What, however, if the employer does not view the choice of companion as ‘reasonable’; perhaps due to the disruptiveness of the companion at previous meetings or a belief that the attendance of the companion will prejudice the hearing?  Can the employer veto the choice of companion?

The answer is ‘no’ according to the EAT in the case of Toal v GB Oils Ltd.  In this case, the employer did not allow the Claimant’s first choice of companion to attend the grievance meeting and so a substitute trade union official attended instead.  The Employment Tribunal held that by choosing an alternative the Claimant had waived his right to claim compensation for breach of the statutory right.  On appeal, however, the EAT found that the employee was entitled to insist that his first choice of companion attend the meeting, and by refusing this request, the employer was in breach of the statutory right of accompaniment. The fact that the employer allowed a second representative to attend did not cure the breach. 

While not frequent, clients of ours have from time-to-time had situations where the first choice of companion is felt to be unsuitable for various reasons.  This case suggests that provided the companion falls within the statutory definition of a work colleague or trade union representative, the employer will have no power to refuse to allow the companion’s attendance at the meeting, and will instead have to rely on a firm management of the meeting to avoid disruptive behaviour.

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