The Employment Relations Act 1999 (ERA) confirms that an employee is entitled to be accompanied to a disciplinary hearing or grievance hearing where he “reasonably requests to be accompanied at the hearing”. Section 10 goes on to confirm that the employer must allow the employee to be accompanied by either an employed trade union official, a certified trade union official or a work colleague. There are occasions though where the employee’s right to be accompanied at these type of hearings can cause some difficulties to employers, for example:
- what happens when the employee’s choice of companion has displayed disruptive behaviour?
- does the employee have the right to be accompanied at an appeal hearing (after the disciplinary hearing) or does an employer have more freedom to reject a companion at that stage?
- what if the companion has been banned from the employers premises?
- can an employer say no to the worker’s choice of companion in any of the above circumstances?
The recent case of Gnahoua v Abellio London Ltd provides some clarification of those very issues. The key facts of the Gnahoua case can be summarised as follows:
- The claimant (Mr Gnahoua) was a bus driver who had been employed by Abellio. Following an investigation and disciplinary process, Mr Gnahoua was dismissed for gross misconduct after being found to be moving a bus whilst using his ipad at the same time;
- Mr Gnahoua appealed and confirmed to Abellio that he wanted to be accompanied at the appeal hearing by one of two brothers, both of whom were union officials for PTSC Union;
- Abellio wrote to Mr Gnahoua and confirmed that Abellio was happy for him to be accompanied by a member of the PTSC Union, but that the two brothers had been banned from taking part in such hearings. This was because the brothers had previously been found guilty of threatening behaviour towards members of Abellio’s staff and dishonesty. Mr Gnahoua therefore attended the appeal hearing unaccompanied; and
- Mr Gnahoua subsequently brought a number of claims against Abellio, including a claim that there had been a breach of his right to be accompanied under section 10 of the ERA.
After considering the issue, the employment tribunal confirmed that an individual’s choice of companion at a disciplinary hearing is absolute, provided that the companion falls within the permitted categories of the ERA. With this in mind, the tribunal upheld that there had been a breach of the claimant’s right to be accompanied. This was so even though the employer’s reasons for refusing the employee’s choice were considered to be perfectly understandable and reasonable. The tribunal also referred to appeal hearings being an integral part of the disciplinary process and did not accept that the right only applied to a disciplinary or grievance meeting. The wording of the ERA also states that an award must be made to the employee where a breach of the right to be accompanied had been upheld. A nominal award of £2 was made to Mr Gnahoua as a result. This award was consistent with the earlier case decision of Toal v GB Oils Ltd 2013, where the Employment Appeal Tribunal confirmed that only a nominal award should be made where no loss or detriment has been suffered. Whilst the case decision may seem unjust, it reaffirms that there is an unfettered right for the employee to choose a companion within the above permitted categories. Employers will need to keep this in mind when considering an employee’s request to be accompanied at a disciplinary or grievance hearing. This bulletin is for general guidance purposes only and should not be used for any other purpose.