Our People
Paper star
Cutting Through Complexity

Just Good Companions

31st October 2013

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.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2013.

Latest News

Gross Misconduct and Statutory Notice
Thursday 12th July 2018

Sophie Banks looks back at a recent bulletin and the EAT judgement handed down last week

Read More

Directors’ Addresses – Privacy Extended
Friday 6th July 2018

Fiona Moss describes the proposals to allow removal of historic personal information from Companies House as identity theft increases and data privacy hits headlines

Read More

The long-term funding of adult social care
Friday 29th June 2018

Howard White provides an update on the joint report from the Health and Social Care and Housing, Communities and Local Government Committees on the long-term funding of adult social care

Read More