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Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
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The right to be accompanied
05 February 2014

It is well known that employees have the statutory right to be accompanied at a disciplinary or grievance hearing by a work colleague or Trade Union representative. However, to what extent can the employer limit the employee’s choice of companion? Does a restriction of choice breach an employees’ right to be accompanied? We report on the recent case of Roberts –v- GB Oils Ltd.

Facts

Mr Roberts was a tanker driver at GB Oils’ depot in Jarrow. He was also a senior shop steward and member of Unite. In August 2011, Mr Roberts was invited to a disciplinary hearing to discuss allegations that white diesel deliveries had been contaminated with gasoil (or “red diesel”). Mr Roberts asked to be accompanied by Mr Lean, a Trade Union official from Unite; however, because of a dispute between Mr Lean and GB Oils, Mr Lean – who was not an employee of GB Oils - had been banned from attending GB Oils’ sites and meetings. No grievance was raised by either Mr Roberts or Unite and instead Mr Roberts arranged to be accompanied by Mr Draper, a senior TU representative. Mr Roberts was dismissed and appealed the decision. At the appeal stage, Mr Roberts again asked for Mr Lean to accompany him but this request was declined; instead, Mr Draper was asked to be the companion. Both sides could not find a date which was acceptable. Eventually a new date when all parties could attend was found but Mr Roberts did not attend the appeal meeting. GB Oils heard the appeal in his absence and upheld its decision.

Can the employer limit the choice of companion?

Initially the employment tribunal rejected Mr Robert’s claim that he had been prevented from bringing a companion of his choice. It held that when his first choice of companion had been denied, he had not raised any complaint; he had understood why GB Oils had objected and had said he was happy to have Mr Draper. On appeal; however, the EAT said:-

  • An employee’s “reasonable right to be accompanied” as set out in the Employment Relations Act 1999, referred to the reasonableness of the request to be accompanied. They said the choice of companion was entirely up to the employee; provided of course, the companion was a work colleague or Trade Union Representative.
  • However, if the employer refused to allow a particular companion - the Employment Tribunal could reflect this by reducing the employee's compensation (if successful), including making a nil award.

STOP THE PRESS!

In January 2014, the Employment Appeal Tribunal decided in the case of Leeds Dental Team Ltd v Rose that preventing an employee being accompanied by a colleague of their choice could amount to constructive dismissal. This was despite the fact that Mrs Rose (the dentist surgery practice manager) was technically self employed so that her chosen companion (one of the dentists at the practice) was not strictly speaking be a colleague of hers.

Summary

It would appear that any interference with an employee’s choice of companion will breach their right to be accompanied and give rise to a potential claim - even if an employer feels that the choice of companion is malicious and has a good reason for refusing. Considerations as to the identity or qualities of the companion are irrelevant when considering the employee's statutory right to be accompanied. Also, following the recent Rose decision, it may also amount to constructive unfair dismissal to refuse a reasonable request. It should also be remembered that the maximum compensation for a breach of the right to be accompanied is 2 weeks’ pay – although compensation for unfair dismissal is potentially much greater. Employers will have to weigh up the cost of defending a claim against allowing the employee to bring the person they have chosen. These decisions also act as a warning to employees against choosing deliberately unsuitable companions designed to frustrate the internal process - their compensation could be reduced to nil as a result.

Calculators at the ready… we set out the new statutory rates of pay just announced

The changes that come into force on 6 April 2014 are:

  • an increase in statutory sick pay (SSP) from £86.70 to £87.55 per week.
  • increases in maternity pay, ordinary and additional paternity pay, and adoption pay from £136.78 to £138.18 per week.

For the purpose of calculating maternity allowance, the Order will come into effect on 7 April 2014.

For further information, please contact our Employment Team on 0118 952 7284 or submit an enquiry.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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