Trade union accompaniment

Many trade union officials will be only too familiar with the two issues considered recently by the employment appeal tribunal (EAT) in Skiggs v South West Trains Ltd (2005, IRLR 459).

It decided that, although workers are entitled to be accompanied to disciplinary meetings, the right does not extend to investigatory hearings. It also said that trade union officials are entitled to compensation if they are unreasonably refused paid time off to do their duties. The RMT union instructed Thompsons on behalf of Mr Skiggs.

What were the facts?

Mr Skiggs was dismissed by South West Trains on 26 September 2002 but reinstated with a written warning on 14 October.

Shortly after his return to work, the depot manager lodged a grievance saying that he was spreading rumours that she was having a relationship with another guard.

The company subsequently decided not to allow Mr Skiggs to go to any depot meetings in his capacity as the RMT rep until the investigations into the grievance had been completed.

The manager in charge of the investigation then asked Mr Skiggs to attend a meeting to discuss the issue. He refused, saying that he had the right to be accompanied.

The manager said he was not entitled to representation as it was just an investigatory interview, not a disciplinary hearing.

What were his complaints?

On 19 December 2002 Mr Skiggs complained to an employment tribunal that his right to be accompanied at a hearing under section 10 of the 1999 Employment Rights Act (ERA) had been breached; and that his employer had refused to allow him time off work for union duties under section168 of the 1992 Trade Union and Labour Relations (Consolidation) Act (TUL(C)RA). The tribunal dismissed the first complaint and upheld the second, but did not award him any compensation. Mr Skiggs appealed on both counts.

What did the EAT decide?

Right to be accompanied: The EAT said this depended on whether the meeting was a "disciplinary hearing" under the meaning of section 10 (see box).

The appeal tribunal said that there was a difference between informal investigative meetings and hearings that were part of a disciplinary process. And although an investigatory meeting can sometimes lead on to a disciplinary hearing (in which case management has to make clear that has happened), it decided that the interview in this case remained on the investigatory side of the line.

This is in line with the ACAS code of practice which says that it is not generally good practice for a worker to be accompanied at the informal stage of the process.

Time off for trade union duties: The next question was whether the tribunal was wrong to have granted only a declaration, and not to award compensation under section 172 of TULR(C)A. This says that any compensation should be "just and equitable in all the circumstances, having regard to the employer's default in failing to permit time off to be taken by the employee, and to any loss sustained by the employee which is attributable to the matters complained of."

The EAT said that the word "compensation" in this context was wide enough to include the concept of a cash reparation to Mr Skiggs for a wrong that had been done to him. He did not have to show any specific or economic loss that he had suffered. The case was remitted to the tribunal to decide the amount.