It is well known by nearly all employers that their employees have a right to be accompanied at any disciplinary or grievance meeting that they are required to attend, if they reasonably request a companion. However, it still surprises me how often we encounter employers who ignore this and pretty much all other employment rights. Unsurprisingly they tend to be the employers who are least impressed with and most penalised by employment protection legislation and the corresponding employment tribunal system.
The case of Toal & Hughes v GB Oils Ltd does not concern such an employer but does address a question often asked by employers – “do I have a say in who the employee brings along as their companion at a disciplinary / grievance hearing?”. Mr Justice Mitting, sitting in the Employment Appeal Tribunal, has confirmed that although the request for a companion must be reasonable, the companion may be from any of the permitted categories – a paid trade union official, a trained union representative or fellow worker, reasonable or not. Further, if when denied his or her choice of companion, the employee settles for someone else, that does not mean that the employee has waived their right to their choice of companion.
Messrs. Toal and Hughes raised grievances against their employer. Both made it very clear to the employer that they wanted a particular Unite official, Mr Lean, to accompany them at the grievance meetings. The employer was unwilling to allow them to be accompanied by Mr Lean so they arranged for a fellow worker, Mr Hodgkin, to come along instead. They were dissatisfied with the outcome and at the ensuing appeal hearing they were accompanied by Mr Silkstone who, like Mr Lean, was an elected union official.
Complaints were made to an employment tribunal that they had been denied their statutory rights. It was decided that the employer had not acted in breach of the statutory obligation in section 10 of the Employment Rights Act 1996 (right to be accompanied). The tribunal considered whether the word “reasonable” applied to anything other than the request to be accompanied at the hearing. It was contended on behalf of the employer that it also applied to the choice of representative. This contention was rejected. Mr Lean satisfied the criteria for selection as a representative and the legislation provided for a worker to be accompanied by one companion chosen by the worker. The employer was in breach of the legislation by rejecting Mr Lean as the chosen companion.
However, the tribunal then went on to conclude that the breach was waived as a result of the subsequent selection of Mr Hodgkin, commenting that the fact that he was a second choice was “immaterial”.
In the Employment Appeal Tribunal Mr Justice Mitting pointed out that an employee must request to be accompanied at a hearing but also noted that it is widely accepted that good employment practice dictates that an employee should be told that he or she has the right to make the request. He also observed, reasonably, that it is not entirely clear why Parliament included the word “reasonably”. In any event, considered in context, it does not apply to the choice of companion. It is the right of the worker because otherwise an employer might wish to place a worker at a disadvantage by interfering with his or her choice.
Interestingly, he goes on to point out that paragraph 36 of the ACAS Code of Practice (dealing with the right to be accompanied) does not assist in interpretation of the statute and does not fill any lacuna in the legislation (when discussing the type of companion who might reasonably be selected).
An ACAS Code is not an available aid to the construction of a statute…On the contrary, it contravenes a basic constitutional principle that it is for Parliament to legislate in words of its choosing for the ends which it seeks to accomplish and for the courts to interpret its legislation, applying established methods of construction.
Further, there is, in our view, no lacuna to be filled. Section 10 of the 1999 Act works perfectly well read and understood in accordance with its straightforward language.
Further, if the ACAS guidance is to be accepted, it creates problems of its own. By what standard is reasonableness to be judged? Who is to determine that the chosen companion would prejudice the hearing? If it is the employee and his reasonableness which is to be assessed, then there will be little protection for an employer. If it is for the employer, then that goes against the clear words of section 10(2)(a) which gives to the employee the apparently unfettered right to choose, subject only to the companion being within those identified in subsection 3. If it is for the employer to decide what is reasonable, then by what standard is the employer’s decision to be judged should it come to be challenged in the Employment Tribunal?
For all of these reasons, we are not of the opinion that paragraph 36 of the ACAS Code is an available aid to construction of a statute which, in our view, is perfectly clear.
Incidentally, these observations provide a robust riposte to those frequently encountered employment lawyers who seek to accord to ACAS Codes of Practice equivalent status to statutes.
The question of a possible waiver of the right was simply addressed since it is simply not open to either an employer or an employee to waive a statutory requirement (Secretary of State for Employment v Deary  ICR 413 and section 203(1) Employment Rights Act 1996).
Whether it was worthwhile pursuing the matter so far taking into account that the remedy is up to two weeks’ pay, subject to the statutory cap, is a moot point. Since the appeal was successful the matter has been remitted to an employment tribunal to consider the question of compensation but with the suggestion that nominal compensation of, say, £2 might be appropriate!