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11-07-2013

Most people are aware of an employee’s right to be accompanied to a disciplinary or grievance meeting by a fellow worker or trade union official. It is not entirely unusual for an employer to refuse an employee’s first choice, because they think that choice is unreasonable e.g. that the companion might interfere with a proper investigation/be disruptive etc. But can an employer do this?

In Toal v GB Oils Ltd, the Claimant wanted to be accompanied to a grievance meeting by L, an elected union official. The Employer refused and instead the Claimant was accompanied by H, a fellow worker. The Tribunal found that by choosing a second companion, the Claimant had waived their right to complain that they had been refused the right to be accompanied by a companion of their choice.

The EAT on appeal held that it is for the employee to choose the companion, not the employer, there is no requirement that the choice of companion be reasonable and the Claimant had not waived his right to complain, when he was forced to make a second choice. As a consequence the Claimant was entitled to compensation. This was not however a resounding victory. The EAT stated that the Claimant was entitled to compensation of up to two weeks' pay. However because the entitlement was to compensation, the Tribunal had to assess whether the Claimant had in fact suffered any loss. In doing so it gave a strong indication that the appropriate level of compensation might be just £2.

Sarah Rushton

srushton@moonbeever.com

Tel: 0207 539 4147

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information. 

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