You may recall that in 2013 an Employment Appeal Tribunal decided that as the companion chosen by an individual to attend with them at a grievance meeting or disciplinary hearing (a fellow colleague or a trade union official), the employer was not entitled to refuse the particular person because of their identity. Acas had to amend their guidance.
The statutory right to be accompanied attaches a risk of an award of two weeks’ pay being capped at £489 based on the current rate of a week’s pay maxing out at £978.
The Employment Tribunal is always encouraged to look at the seriousness of the breach and reflect this in the level of damages awarded as had been decided in the Toal case.
A recent decision involved the London Bus Company Abellio and an employee who was dismissed for reading books on his iPad whilst manoeuvring a bus (I kid you not!). He requested to be accompanied at the disciplinary meeting by one of two brothers who were Trade Union officials but the employer had a policy of refusing to allow those brothers to act as companions for other colleagues due to their previous vexatious conduct in employment tribunal claims. Whilst the employer in having that policy was in clear breach of the principles in Toal, they otherwise conducted the disciplinary hearing properly so in effect the employee has not suffered any loss or detriment as a result of their decision to not allow him to be accompanied by his chosen person.
The Tribunal found that it was understandable to have not allowed him in the circumstances to have been accompanied by either of those brothers and as such the employee was awarded the minimal sum of £2.00 in compensation.
This is heartening news for employers as there may be circumstances where the chosen companion has a clear conflict of interest and their availability is being used to attempt to avoid the disciplinary hearing. You can choose to take the risk of breaching the right to be accompanied s10 Employment Relations Act 1999 on the basis that as long as you give the employee a hearing where they have every opportunity to represent themselves your risk will be low. I suppose in a complex case, failure to have someone accompany you could prejudice your ability to handle the disciplinary hearing so you’d have to take care in such cases.
In cases where an employee has issued a claim in relation to this sort of argument it would be useful to quote the Abellio case in offering perhaps a very low sum of money, some may call it a ‘peppercorn amount’ rather than the full two weeks’ pay that the claimant will be claiming.