Section 10(3) lists the categories of companions permitted, which includes a trade union official or another of the employer’s workers.
Toal and the colleague claimed against the employer’s failure to permit them to be accompanied by their “chosen companion” a member of the Trade Union Official. The employer, however, did permit a work colleague and another trade union official to act as companions to the two workers in the grievance hearing and subsequent internal appeal hearing.
The employment tribunal rejected the claim on the grounds that the workers had waived their right to be accompanied by their choice of trade union official when they accepted the employer’s offer of alternative companions. Toal and Hughes appealed, arguing that it was not open to the tribunal to find they had waived their right to be accompanied by their preferred official.
The Employment Appeal Tribunal rejected the employer’s argument that the word ‘reasonably’ used in the relevant paragraph of Acas Code of Practice on Disciplinary and Grievance Procedures applied to the choice of companion as well as to the request to be accompanied.
The Code states that ‘it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing’. The EAT held that an Acas code of practice cannot help in the construction of the law and the guidance could not be accepted. The ERA makes no mention that the choice of companion must be reasonable and in any event, there is no standard by which ‘reasonableness’ could be judged.
The appeal tribunal also ruled that where employees choose another companion after the first has been rejected, that does not mean those employees have waived their right to be accompanied by their first choice. It also pointed out that employers and employees cannot waive a statutory right.
So the EAT upheld the employees’ appeal, ruling that there is no requirement for a request for a particular companion to be reasonable, provided that companion is within one of the permitted categories, and clearly Toal’s first choice of trade union official was such a person.
This is a significant ruling by the EAT as the EAT confirmed, a code cannot plug a perceived gap in the law where the language used in a statute is straightforward vi.z. there is no requirement for the employee’s choice of companion to be reasonable in section10 of the ERA (although there is no power to prevent an employer extending the right to anyone else whom they consider to be reasonable).
I thank Makbool Javaid, partner and head of employment law at Simons Muirhead and Burton for bring this case to my attention.