Right to be accompanied – who gets to choose?

Picture the scene:

• A bus driver is dismissed for looking at an iPad while moving a bus.
• On appeal, he informed his employer that he wished to be accompanied by two brothers who had formed the PTSC Union.
• The employer refused this request, having banned both brothers from representing staff at hearings because:

(i) one of the brothers had previously been dismissed from the employer for "harassment and intimidation" towards members of staff; and

(ii) a Tribunal claim brought by him, in which he was represented by the other brother, was struck out for vexatious conduct by the brothers, including falsifying the date on a witness statement.

• The employer said it was happy for the claimant to be accompanied by anyone else from the PTSC Union.
• In the end, the claimant attended the appeal hearing without representation. His appeal was not upheld.

Personally, these are the sort of facts which would cause me minor despair when advising clients. I would sympathise wholeheartedly with protestations that it is madness for individuals guilty of threatening and dishonest behaviour to be a companion. I'd agree that it could derail disciplinary proceedings. But then I'd explain that the law is the law and since the case of Toal v GB Oils in 2015 (on which see our blog piece) employees have an unfettered right to choose their companion. Provided the companion falls into one of the permitted categories (i.e. they are a colleague or trade union official), the choice of companion does not need to be reasonable and an employer cannot refuse that choice.

Not surprisingly therefore, the Tribunal in the recent case of Gnahoua v Abellio London Ltd - which had to consider the facts set out above - found that the employer had breached the employee's right to be accompanied.

However, there is a bright side to this case. Despite the technical breach, the Tribunal found that the claimant had not suffered any loss or detriment and it expressly stated that it made no criticism of the employer's actions. As a result, it only awarded the claimant nominal compensation of £2 (the law does not permit nil compensation).

So what can employers take away from this case? Well, I'm certainly not advising anyone to throw caution to the wind and start refusing companions; the starting point in disciplinary hearings must always be to accept an employee's choice of companion (nominal compensation does not negate the cost of having to go to Tribunal in the first place!). However, there does seem to be scope for wiggle room in those rare cases where there are (to quote the Tribunal) "strong grounds" to interfere with companion choice – though we'd strongly suggest you seek advice before embarking on such action. If an employer adopts this approach, it is essential that disciplinary proceedings are conducted (again to quote the Tribunal) in "a considerate and thorough fashion" to counter any detriment arguments.

If, however, you continue to a hearing with a companion about which you have concerns, the best way of containing them is to be very clear about their role at the outset (and if necessary remind them of that at intervals throughout). The law is clear that a companion may:

1. address the hearing to put the worker's case, sum up and respond on the worker's behalf to any view expressed in the hearing;
2. confer with the worker;
3. not answer questions on behalf of the worker;
4. not address the hearing contrary to the worker's express wishes; and
5. not act in a way which prevents the employer explaining its case or any other person making a contribution to it.

Having said that, in my experience (both in HR and when advising clients), engaging with a companion and wherever possible allowing them to participate fully in a hearing (as advised by Acas), can make a big difference to the process. Not always easy when dealing with someone obstreperous or militant, but generally worth a try.