The Right to be accompanied at a Disciplinary Hearing
What happens where an employee’s choice of companion has displayed disruptive behaviour and has been found to have previously intimidated staff? Can an employer veto the employee’s choice of companion in these circumstances?
In Gnahoua v Abellio London Ltd the tribunal considered whether there had been a breach of the right to be accompanied and, if so, what compensation was appropriate.
The legal background
An employee has the right to be accompanied to a disciplinary hearing by either a trade union representative or a work colleague. In addition, the employee has a right not to suffer a detriment as a result of exercising the right to be accompanied.
Previous case law (Toal v GB Oils Ltd) has made clear that, as long as the companion meets the statutory definition, the employee has an unfettered right to be accompanied by their chosen companion.
In this case, disciplinary proceedings were brought against Mr Gnahoua, a bus driver for Abellio, who was caught using his iPad whilst his bus was in motion; a gross misconduct offence. The decision was taken to dismiss him.
At his appeal, Mr Gnahoua asked to be accompanied by one of two brothers who had formed the PTSC union, of which Mr Gnahoua had become a member. Abellio wrote to Mr Gnahoua informing him that he could be accompanied by a member of the PTSC union, as long as that member was not one of the two brothers.
Abellio had a policy of refusing to permit the two brothers from accompanying employees at disciplinary and grievance hearings because of one of the brother’s threatening behaviour towards members of staff and both brothers’ dishonesty.
One of the brothers had been an employee of the company, but had been dismissed for “harassment and intimidation” of another member of staff. He brought an employment tribunal claim, at which his brother represented him. The employment tribunal awarded costs against both brothers of £10,000 for vexatious conduct. The conduct had involved falsifying the date on which a witness statement was prepared. Abellio therefore took the view that the brothers had attempted to obtain substantial compensation from it using dishonest means.
Mr Gnahoua ultimately attended his appeal without representation. The decision to dismiss was upheld.
Mr Gnahoua subsequently brought a number of claims against Abellio, including a breach of the right to be accompanied at his disciplinary appeal hearing.
The tribunal confirmed that an employee’s choice of companion is absolute, provided the companion comes within one of the permitted categories. Thus, the tribunal held that there had been a breach of Mr Gnahoua’s right to be accompanied, even though Abellio’s refusal was understandable. However, the tribunal found that Mr Gnahoua had not suffered any loss or detriment as a result. The tribunal found that Abellio had conducted the disciplinary hearing in a considerate and thorough fashion, going through has arguments and taking account of his long service. On this basis the tribunal awarded Mr Gnahoua £2 compensation.
Whilst the decision may not be welcome news for employers, the level of compensation for breach of the right to be accompanied is only likely to be nominal when no detriment or loss has been suffered.
Employers will need to weigh up the decision if considering whether to decline an employee’s request for a particular companion.