The Right to Be Accompanied

Contrary to what some employers assert, employees do have the right to be accompanied by Workers of England Union representatives at meetings with their employer.

Summary

Is it a breach of an employee’s right to be accompanied for an employer to refuse a disruptive trade union representative as a companion in disciplinary or grievance hearings—even when no prior notice of the representative’s attendance has been given? Yes, held the Tribunal in Eleftheriou and another v Arriva London North Ltd.

Background

Under Section 10 of the Employment Relations Act 1999, an employee may choose to be accompanied at disciplinary or grievance hearings by:

• a work colleague,
• a union official, or
• a person certified by the union as experienced in acting as a companion.

This right is reflected in the updated ACAS Code of Practice – Disciplinary and Grievance Procedures (view PDF). For further guidance, see our internal article on the Right to Be Accompanied.

The EAT in Toal and another v GB Oils Ltd confirmed that there is no additional requirement for the companion’s choice to be “reasonable.” An employee is entitled to their chosen companion, provided they meet the statutory criteria. A breach allows a Tribunal claim with a penalty of up to two weeks’ pay.

Facts of the Case

Bus drivers Mr Eleftheriou and Mr Bowani both sought Mr McConville—an accredited RMT trade union representative—as their companion at disciplinary hearings. The employer required advance notice of the companion’s identity, but Mr Eleftheriou arrived unannounced with Mr McConville. Due to prior disruptive behaviour attributed to Mr McConville, managers had orders to refuse his attendance.

The outcomes were:

• Mr Eleftheriou’s hearing proceeded without representation; he received two cautions.
• Mr Bowani secured alternative representation but was dismissed.

Tribunal Decision

The Employment Tribunal held that the employer breached the employees’ rights under Section 10. Relying on Toal and another v GB Oils Ltd, the Tribunal clarified:

• An employer must not veto an employee’s companion if they are a work colleague or accredited trade union official, regardless of perceived unsuitability.
• Turning up at a hearing with a chosen companion constitutes a valid request; no strict requirement exists for prior notice under the ACAS Code.
• Where credentials of a trade union representative are genuinely in doubt, a reasonable request for advance notice may be justified.

Each employee was awarded two weeks’ pay in compensation.

Implications for Employers

Employers risk breaching an employee’s right to be accompanied if they refuse a companion who is a work colleague or accredited union representative. Such breaches expose them to Tribunal claims and an award of up to two weeks’ pay.

Even if a companion arrives without prior notice, the Tribunal suggests the right still applies. However, employers can require advance notice only when there is legitimate doubt about the companion’s qualifications.

Remember that, following Toal and another v GB Oils Ltd, a Tribunal must assess the actual loss or detriment suffered. In minor cases, only nominal compensation may be awarded (as little as £2). Employers may therefore gauge the risk, insist on a reasonable choice of companion, and, where alternatives exist, keep exposure to no more than two weeks’ pay.