In a disciplinary or grievance hearing employees have a statutory right to be accompanied by a trade union representative or a fellow worker of their choice (s10 Employment Rights Act 1999). If an employer prevents an employee from exercising this unfettered choice an Employment Tribunal can award compensation of up to 2 weeks’ pay.
Why then did the Employment Tribunal in the recent case of Gnahoua v Abellio London Limited ET/2303661/2015 award only nominal compensation of £2?
In this case the employer had a policy of not letting two named individuals – two brothers who were both Trade Union officials – from acting as companions in disciplinary and grievance hearings. This ban was the result of a previous attempt by one of the brothers (assisted by the other) to claim significant compensation from the company using dishonest means, an attempt which led the Employment Tribunal in that case to order the brothers to pay £10,000 in costs for vexatious conduct. Given the history, when one of the brothers was selected the employer refused to let the employee have the companion of his choice.
In the Employment Tribunal the judge decided the law on this point was very clear and found the employee was entitled to compensation. The employee won the battle but lost the war however when the judge decided that he had not suffered any loss or detriment as a result of not having his chosen companion and awarded compensation of just £2. The judge found the employer had carried a considerate and thorough disciplinary hearing, given though to the arguments on both sides and taken into account the long service of the employee.
Although some employers would look at the case headline and be bullish in rejecting companions out of hand, the reality is very different. In this case the employer had very good reasons for rejecting the companion and an independent Employment Tribunal decision on costs to back it up. Further, even though it rejected the companion the employer still went to great lengths to carry out a fair and thorough disciplinary procedure.
To discuss disciplinary and grievance procedures or for more information on this blog please do not hesitate to contact our experienced Employment team for a free and confidential discussion on 01924 387 110.