Right to accompany
Labour & European Law Review Weekly Issue 332 14 August 2013
Section 10 of the Employment Relations Act (ERelA) 1999 states that workers are entitled to be accompanied by a representative of their choice at a grievance or disciplinary hearing. In Toal and Hughes v GB Oils Ltd, the Employment Appeal Tribunal (EAT) held that, if their employer refuses their request, the worker does not then lose that right if they ask someone else to accompany them.
The men’s union, Unite the union, instructed Thompsons to act on their behalf.
After raising grievances with their employer, Mr Toal and Mr Hughes were invited to a meeting to hear their complaints. They individually exercised their right under section 10 of the ERelA to be accompanied to the meeting by an elected union official, Mr Lean, who was certified by Unite under section 10(3) of the Act.
However, when their employer refused their request they asked if a fellow worker, Mr Hodgkin, could attend. This was agreed. When their grievances were rejected, they appealed and requested that Mr Lean accompany them. This request was again refused and they were accompanied to their appeal hearings by Mr Silksone, another elected union official.
The men then brought claims that their employer was in breach of section 10 by refusing to allow Mr Lean to accompany them. For their part, the employer argued that the Acas code of conduct made clear that the word “reasonably” in section 10 applied not just to the request to be accompanied but also to the choice of representative. Alternatively, the employer argued that the men had waived the breach of section 10 by choosing someone else to accompany them.
Sections 10(1) and (2) ERelA state that when a worker is asked to attend a grievance or disciplinary hearing and “reasonably requests to be accompanied at the hearing”, the employer must permit the worker to be accompanied by a companion chosen by the worker who comes within subsection 3.
Subsection 3 states that this includes “an official of a trade union ... whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings”.
The tribunal agreed that, as Mr Lean came within subsection (3), the employer was in potential breach of the statute by refusing to allow him to act as the men’s companion. Had the men brought their claim at that point, it would have found in their favour.
However both men then chose someone else to accompany them. By doing so, they waived the earlier potential breach when the grievances and appeals concluded with their chosen representative.
The EAT rejected the employer’s argument that section 10 should be read in conjunction with the Acas code, holding that it was not “an available aid to the construction of a statute”. Instead it was for Parliament to legislate in “words of its choosing ... and for the courts to interpret its legislation, applying established methods of construction”. In any event, section 10 was perfectly easy to understand with its “straightforward language” and did not require a code to decipher it.
It also rejected the argument that, by choosing another companion, the men had waived their employer’s breach of the Act for the simple reason that the only way the men could “contract out” of their employment rights was by a settlement agreement (formerly known as a compromise agreement) or by a COT3.
The EAT therefore allowed the appeal and remitted the case to the tribunal to determine the amount of compensation due to the men.
This is a beneficial judgment which reinforces a worker’s right to be accompanied, even if the employer does not favour the chosen representative, or believes that the chosen representative may be robust in their representation. However, despite upholding the appeal, the EAT has unhelpfully implied that the workers have suffered no loss or detriment and provided authoritative guidance to the tribunal that they should feel “constrained” to make an award of “nominal compensation only”.