Right to be Accompanied – Constructive Dismissal for refusing employee’s choice of companion

Section 10 Employment Relations Act 1999 entitles an employee to be accompanied to a disciplinary or grievance meeting by a work colleague or trade union official.

In Leeds Dental Team Ltd v Rose, Mr Rose was invited to a disciplinary meeting and duly requested to be accompanied by the practice’s principal. The Practice refused his request because they felt the principal would be ‘supportive’ of the Claimant’s position.

Mr Rose went off sick and later resigned claiming that he had been constructively dismissed. The Employment Appeal Tribunal held that the employer’s refusal to allow Mr Rose to be accompanied to the aborted disciplinary meeting was a breach of trust and confidence and upheld his claim.

Following Toal v GB Oils Ltd (which we summarised here), this case is a further reminder that an employee’s choice of companion can only rarely be safely resisted.

Right to be Accompanied – Who can accompany?

Employees have a statutory right to be accompanied to disciplinary and grievance meetings (see section 10 Employment Relations Act 1999).   The right is engaged if the Employee ‘reasonably requests to be accompanied’.

The ACAS Code of Practice on Disciplinary and Grievance Procedures says that what is ‘reasonable’ will depend upon the circumstances of each individual case, and goes on to say that ‘it would not normally be reasonable for a worker to insist on being accompanied by a companion whose presence would prejudice the hearing…’.

So, if a worker reasonably requests to be accompanied, does the request for the particular companion have to be reasonable?

The Employment Appeal Tribunal decided in Toal v GB Oils Ltd that the request for a particular companion does not have to be reasonable.  In so doing the EAT rejected the ACAS guidance and found that the right as it related to any particular companion, was limited only to the categories set out in Section 10 (3) Employment Relations Act 1999 and not by an further consideration of reasonableness.

There are two things to note from this:

  1. Employers cannot refuse to allow an employee to be accompanied by a particular person provided that person falls within the categories in Section 10 (3), no matter how objectionable they may consider that person to be.
  2. ACAS guidance is trumped by a literal interpretation of the relevant Act of Parliament.