The right to be accompanied at a Disciplinary Hearing

Did you know?

If an employee is required to attend a disciplinary meeting at work they have an unfettered right to be accompanied by a companion in the form of a colleague or trade union representative.  The recent employment tribunal decision in the case of Gnahoua v Abellio London Limited  is reaffirmation for employees of this absolute right.

The legislation

Section 10 of the Employment Relations Act 1999 states that where an employee is required or invited to attend a disciplinary or grievance hearing and reasonably requests to be accompanied at the hearing, the employer must permit the worker to be accompanied at the hearing by a single companion who is a colleague or a trade union official.

The case facts

• Mr Gnahoua was employed as a bus driver for Abellio.
• In July 2015 Mr Gnahoua was suspended pending investigation for failing to carry out checks required on the bus before departure.  This was caught on CCTV footage.

• The CCTV footage also showed Mr Gnahoua looking at an iPad whilst moving the bus.
• Mr Gnahoua required to attend a disciplinary hearing in July 2015 where he was accompanied by a union representative.  He was thereafter summarily dismissed for gross misconduct for operating an iPad while the bus was moving.
• Mr Gnahoua appealed this dismissal decision.  His employers were informed that he would be represented at this appeal by one of two brothers who were union representatives.
• Abellio had a policy of refusing to permit the two brothers to accompany employees at disciplinary or grievance meetings. This was because an employment tribunal, in separate proceedings by one of the brothers against Abellio, had awarded £10,000 in costs against both brothers for vexatious conduct which had included falsifying the date on which a witness statement was prepared.
• Abellio sent an e-mail to Mr Gnahoua two days before the meeting stating he could take along another union representative but that he was not to be accompanied by either brother at his appeal meeting for the reason that they had previously acted dishonestly and were guilty of threatening behaviour towards staff.
• Further correspondence took place where Mr Gnahoua insisted he was accompanied by one of the brothers but this was refused.
• Mr Gnahoua eventually attended the meeting without representation and took little part in the meeting as he said he was severely prejudiced.
• The appeal failed and the decision of dismissal was upheld.
• Mr Gnahoua took his claim to an employment tribunal.

The decision

The tribunal followed the decision in the case of Toal v GB Oils Limited (2013)  which established that the employee had an unfettered right to be accompanied to a disciplinary hearing by a colleague or trade union representative of his own selection.  Mr Gnahoua’s case was therefore successful.

However, when considering the amount of compensation to award, the tribunal also paid heed to the comments in Toal which suggested that nominal compensation of £2 or some other small sum was an option for tribunals in cases where the employee had not suffered any loss or detriment as a result of the breach by the employers.

The tribunal found that Abellio had conducted Mr Gnahoua’s disciplinary hearing in a considerate and thorough fashion, going through his arguments and taking into account his long service.  They could not find any specific detriment or loss suffered by Mr Gnahoua as a result of the employer’s breach of the Employment Rights Act in failing to allow the employee to bring a companion of his own choice.

Mr Gnahoua was awarded the grand total of £2 compensation.

What can we take from this decision?

An employer must allow an employee to choose their companion, whether this be a trade union representative or colleague, to accompany them to any disciplinary hearing.  A failure to do this will leave the employer open to a tribunal claim against them.

The tribunal may award a nominal sum of compensation if they cannot find that the employee has suffered loss or detriment as a result of the breach by the employer.

What about other companions?

If any employee wants to be accompanied to the meeting by a person who is not a colleague or trade union representative, for example a family member, there is no obligation on the employer to allow this.  However, if its aids the process by helping the employee to feel relaxed and there is no detriment to the employer in the companion being present, the employer may want to use their discretion to allow this.

Of course, the employer may want to draw the line at allowing certain companions (dogs?).

How can we help?

If you have any questions about this article and an employee’s right to be accompanied at a disciplinary hearing – or if you require any other employment law advice – we are here to help.

You can contact us by phone on 01343 544077 or you can send us a Free Online Enquiry .

Note: This article was first published on the Moray Employment Law website in May 2017.