Breach of the right to be accompanied: what is the cost?
Employees have a statutory right to be accompanied by a work colleague or trade union official if they are required to attend a disciplinary or grievance hearing and they make a reasonable request to be accompanied. The companion is entitled to confer with the employee during the hearing, address the hearing, put the employee’s case, sum up and respond on the employee’s behalf to any view expressed at the hearing. The companion is not entitled to answer questions on behalf of the employee, address the hearing contrary to the employee’s wishes or act in a way that prevents the employer explaining its case.
Case law has established that the employee’s right to choose their companion is unfettered, as long as the companion falls into the category of a work colleague or an employed trade union official. The employee can therefore request anyone within those categories to be their chosen companion. Their choice does not have to be reasonable, and the employer cannot veto the employee’s decision.
If the employer refuses the employee the right to be accompanied by their chosen companion, the employee has a claim against the employer for compensation for the loss or detriment that they have suffered. If the claim is successful, the Employment Tribunal must order the employer to pay compensation of up to two weeks’ pay (subject to the current maximum of £489 for a week’s pay).
However, when it comes to assessing compensation, the employee has to show that they have suffered loss or detriment as a result of the breach of their rights. In a recent case, the Employment Tribunal considered a claim by an employee that his right to be accompanied had been breached by his employer. In that case, the employer had a policy of refusing to allow two brothers, who were union officials, to accompany employees at any disciplinary or grievance hearings. This was because previously, one of the brothers had been dismissed from his employment with the employer for harassment and intimidation. He had subsequently issued a claim against the employer and was represented by his brother. The Employment Tribunal awarded £10,000 in costs against the brothers for vexatious conduct which involved falsifying the date on which a witness statement was prepared. The employer decided that there had been an attempt by the brothers to obtain compensation from it using dishonest means and banned them from acting as companions at any disciplinary or grievance hearings.
In this case, Mr G asked to be accompanied by one of the brothers at a disciplinary appeal hearing, and the employer refused. Mr G issued claims in the Employment Tribunal including a claim for the breach of his right to be accompanied. The Employment Tribunal decided that Mr G’s rights had been breached. However, it went on to find that Mr G had not suffered any loss or detriment and therefore awarded him nominal compensation of £2.
Comment
It is important to note that in this case the employer had told Mr G that it was happy for him to be accompanied by another member of the union, just not one of the brothers. The Employment Tribunal found that the employer had conducted the hearing in a “considerate and thorough fashion”. It made no criticism of the employer’s decision, which was in its view “entirely understandable” in the circumstances. Clearly, if the employer had simply wanted to avoid a trade union being involved in the disciplinary process, the outcome of this case could have been different.
The Employment Tribunal does not have the right to order that no compensation is payable. However, where it is satisfied that no loss or detriment has been suffered by an employee as a result of the breach of their rights, an Employment Tribunal is likely to award nominal compensation only.
Any breach of the right to be accompanied is, however, a factor that could be taken into account by an Employment Tribunal when considering the fairness of a dismissal in the event of a claim of unfair dismissal. It could also lead to an uplift in any compensation awarded if an Employment Tribunal considers that the breach of the right to be accompanied is an unreasonable failure by the employer to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.
07 July 2017
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