Right of an employee to request a companion is an absolute right
Friday 21st March 2014
The case of Toal and Another v GB Oils Ltd has dealt with 2 issues about an employees companion. In this case, GB Oils refused to allow 2 employees their first choice of companion. The employees then put forward another companion which the company allowed.
GB Oils argued, when faced with a claim for a breach of their right to be accompanied, that the employees had waived the breach by the fact they chose another companion. The second issue was whether the choice of companion was reasonable in accordance with the ACAS code of practice on Disciplinary and Grievance procedures.
The Employment Appeals Tribunal said the right was an absolute right and this therefore cannot be waived so the employees were entitled to bring their claim irrespective of whether they obtained an alternative companion or not.
On the second issue the EAT said that there was nothing in the wording of the legislation that said the choice of companion had to be reasonable. The use of the word reasonable only applied to the making of the request to be accompanied.
The second issue failed to go on to consider the reasonableness of the choice of companion as set out in the ACAS code and so it is not clear if a companion would be allowed if they may prejudice a hearing. What is clear is that compensation for such breaches is limited to two weeks pay. This is the maximum and any amount awarded is at the discretion of the judge and will be based on any loss suffered by the employee as a result of the breach. Provided therefore “an” employee or trade union rep is allowed it would be difficult for an employee to argue they would have suffered loss as a result of any breach.
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