Post-Termination Restrictions: Supreme Court to the Rescue
18th July, 2019
Céline Winham considers recent Supreme Court case which clarifies enforcement of post-termination restrictions in contracts of employment
There are always meeting and hearings happening in your workplace. If it’s not a redundancy consultation meeting, it’s a disciplinary or capability hearing. They’re all arranged, but the provisionally selected and disciplined members of staff just aren’t playing ball with your well-crafted procedures.
Firstly, the individual provisionally selected for redundancy wants to be accompanied by a representative. Now you know that the ACAS Code of Practice and statutory right to be accompanied doesn’t apply to redundancy situations, but they are being rather insistent. Go with it, let them have a companion, what have you got to hide? But do restrict them to a colleague or trade union representative as the last thing you want is a lawyer turning up.
The person being disciplined has asked to be accompanied by a colleague who is a real troublemaker (on their second final written warning for misconduct) and you would rather they chose someone else. You remind yourself of the ACAS Code of Practice and are about to tell them that their request is not reasonable in light of the chosen companion’s previous attitude to discipline and, in any event, that they work at a remote geographical location which would require them to be absent from work all day in order to attend the disciplinary hearing.
But hang on, in a recent case (Toal v GB Oils Ltd), the EAT held that an employee has an absolute right to choose their companion and their right to “reasonably” request to be accompanied at a hearing cannot be curtailed by an employer’s view as to whether any particular companion may be reasonable. As a result, ACAS have announced that they will be amending their Code to reflect this judgment.
In the Toal case, the Tribunal may make an award for only nominal compensation (the EAT suggested £2) as the employee suffered no loss. However, it is possible that an employer’s refusal to allow a person to be accompanied to a disciplinary dismissal meeting may cause the dismissal itself to be unfair.
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