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What Are the Consequences of Breaching the Right to Be Accompanied?

on Friday, 05 May 2017.

In Gnahoua v Abellio London Ltd, an employment tribunal considered whether there had been a breach of the employee's right to be accompanied and, if so, the level of compensation to be awarded.

Facts

Mr Gnahoua was summarily dismissed by Abellio following an investigation into alleged misconduct.

Mr Gnahoua appealed against his dismissal. He wanted to be represented at the appeal hearing by a PTSC union official, however Abellio had a policy of refusing to permit the chosen official (and his brother) from accompanying its employees at disciplinary or grievance hearings, due to a previous matter in which both of them had attempted to obtain substantial compensation from the company using dishonest means. This had resulted in an award of £10,000 in costs being made against the brothers for 'vexatious conduct'.

Despite persistently reiterating his right to be accompanied at the appeal hearing, Mr Gnahoua ultimately decided to attend on his own and refused to engage with the meeting as he felt 'severely prejudiced' without a representative.

MR Gnahoua's appeal was unsuccessful and he brought various claims in the employment tribunal, including unfair dismissal, race discrimination and a breach of his right to be accompanied. His claims for unfair dismissal and discrimination were dismissed for being out of time and having no reasonable prospects of success respectively. The only remaining claim for the tribunal to determine was the alleged breach of Mr Gnahoua's right to be accompanied at his appeal hearing.

Findings

The tribunal applied the Employment Appeal Tribunal's decision in Toal v GB Oils Ltd, which found that provided the chosen companion was a workplace colleague, an employed trade union official or a certified trade union official the employee has an unfettered right to be accompanied by that individual.

As Mr Gnahoua's chosen companion was a trade union official, he came within a permitted category and therefore the tribunal found that Abellio's refusal amounted to a breach of Mr Gnahoua's right to be accompanied. However, the tribunal also concluded that the breach did not result in Mr Gnahoua suffering any financial loss or detriment, as the company had conducted the disciplinary hearing in a 'considerate and thorough fashion', and taken into account his long service.

In considering the amount of compensation to award Mr Gnahoua in these circumstances, the tribunal followed the decision in Toal by awarding nominal compensation of £2.

Best Practice

  • In nearly all cases it is likely to be best to focus on the grievance and disciplinary issues at hand, rather than enter into a satellite dispute about the right to be accompanied.

  • In very rare cases employers may feel that such a dispute is worth it given the potentially limited financial implications of breaching the employee's right to be accompanied. However, a word of warning:

    - Where the employment relationship is ongoing it is possible that a refusal could amount to a breach of the implied term of trust and confidence, allowing the employee to resign and claim constructive dismissal

    - If the employee connects the refusal to a protected characteristic he or she may have a claim under the Equality Act

    - A refusal to allow an employee to have their chosen companion may impact on the overall fairness of any dismissal and

    - If financial loss can be proved a larger award may be made

  • Whilst breaching the employee's right to be accompanied is not recommended, if an employer is considering it then it should make sure there is a clear and objective evidence base for doing so and that the overall fairness of its processes has not been affected.


For more information, please contact Michael Halsey from our Employment Law team on 020 7665 0842.

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