Right to be accompanied
What is the punishment for getting it wrong? Ian Machray summarises an interesting recent tribunal decision.
Employees have the right to be accompanied to a grievance or disciplinary hearing by a trade union representative or colleague. In fact, recent case law has established that employees have an unfettered right to choose their companion as long as the individual falls within one of the permitted classes (namely a certified trade union official, an employed trade union official or a colleague). In the recent case of Gnahoua v Abellio Ltd, the Employment Tribunal (ET) had to determine whether this right had been breached and, if so, the amount of compensation to be awarded.
Mr Gnahoua was subject to disciplinary proceedings and sought to be accompanied by one of two PTSC union officials. Incidentally, Abellio had a policy banning these two individuals from representing anyone in any disciplinary or grievance hearings as they had previously been found guilty of dishonesty and threatening behaviour towards staff. Abellio did, however, confirm that Mr Gnahoua could be represented by another member of the PTSC union of his choice but he ultimately attended the hearing alone.
The ET found that Mr Gnahoua had been denied his right to be accompanied at a disciplinary hearing but, despite this finding, only awarded compensation of £2. Whilst Abellio had breached Mr Gnahoua’s right to be accompanied, he suffered no loss or detriment as Abellio had conducted a thorough and considerate disciplinary hearing. Importantly, the ET emphasised the fact that Abellio only sought to interfere with Mr Gnahoua’s companion of choice on strong grounds.
Recent case law has made it abundantly clear that where the employee’s chosen companion is a permitted individual, the choice of companion is at the discretion of the employee. However, it is likely that in circumstances similar to these, where the employer has strong grounds for breaching the statutory right and undertakes a comprehensive procedure, the level of compensation may be minimal.
However, these were exceptional circumstances and the conduct of an employer in whether or not to allow a particular companion may be taken into account by a tribunal when assessing the fairness of any dismissal; the compensation for which could be much more considerable.