Precis
Employers will be familiar with the concept of an employee being accompanied to a disciplinary hearing by either a work colleague or trade union official. In terms of the party accompanying the employee, as long as they usually fall within either of those criteria, it is a general rule that the employee can choose their companion without this being dictated by the employer (Toal and another v GB Oils Ltd and Roberts v GB Oils Ltd). However, in the case of Gnahoua v Abellio London Ltd 2303661/2015, the question arose as to whether an employer was considered to be in breach of the employee’s right to be accompanied when they refused to allow his chosen companion.
The Facts
Mr Gnahoua was a bus driver who was subject to a disciplinary hearing due to being caught looking at an iPad whilst his bus was in motion. Following the disciplinary hearing, where Mr Gnahoua was represented by a Unite Official, he sought to appeal against the decision and informed his employer that he wished to be accompanied by two brothers who had formed the PTSC union.
The Employer informed Mr Gnahoua, that it would not be possible for them to be represented by the two brothers as they had been banned from representing its staff at hearings. This is because there had been previous instances of threatening behaviour and dishonesty involving the brothers. One of the brothers had been an employee of the company, but had been dismissed for “harassment and intimidation” of another member of staff.
Although the employer refused to allow the brothers to accompany the employee, the employer did, however, state that they would be prepared to have someone else from the PTSC union accompany the employee.
Mr Gnahoua did not agree with the Employer’s stance and therefore attended his appeal hearing without representation, where the decision to dismiss was upheld.
Judgment
The Tribunal concluded that whilst the employer had breached the employee’s right to be accompanied by his chosen companion to a disciplinary appeal hearing, it was only prepared to award a compensatory payment of £2, on the basis that the employer had understandable reasons for the refusal.
The Tribunal confirmed that they made no criticism of the employer in its decision to refuse the employee’s chosen companion and held that the Employer had acted in accordance with the ACAS Code of practice.
Advice
Notably, this case is not a carte blanche for employers to start dictating to employees who they can and cannot have as an accompanying party when they are either a work colleague or trade union official. However, if there are justifiable, strong grounds for the disallowance of a particular party, then this does not automatically result in significant penalties against the employer. Employers should be mindful to adopt a reasoned and practicable approach to an employee’s request to be accompanied, however if there are strong grounds to justify the refusal of a choice of companion then the Tribunal may also take a view on this position, even if a technical breach has occurred.
