Roberts v GB Oils Ltd

Where a worker reasonably requests to be accompanied at a disciplinary or grievance hearing, the choice of companion is the worker’s, provided the companion falls within section 10(3) of the Employment Relations Act 1999. The employer cannot generally assess the companion’s identity or qualities when deciding whether the request was reasonable. The statutory safeguards are the categories in section 10(3) and the tribunal’s power to reduce compensation, potentially to nil, where the breach caused little or no prejudice. The right cannot be waived by accepting an alternative companion. An ACAS Code may be taken into account under section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, but it cannot displace the clear statutory construction.

The claimant, a tanker driver and senior shop steward, was dismissed for misconduct following contamination of fuel deliveries. He sought to be accompanied at disciplinary and appeal hearings by a lay trade union official whom the employer refused to admit because of an ongoing dispute and site ban. He accepted another union representative for the disciplinary hearing, but the Employment Tribunal rejected his complaint under sections 10 and 11 of the Employment Relations Act 1999.

The appeal concerned whether accepting an alternative companion waived the statutory right and whether the word reasonably permitted consideration of the chosen companion’s identity or characteristics. The Tribunal also had to consider the effect of the earlier EAT decision in Toal & Hughes v GB Oils Ltd, [2013] IRLR 696.

1. Appeal allowed and claim remitted. The claim under section 11 of the Employment Relations Act 1999 was remitted to the Employment Tribunal to assess compensation, subject to the statutory maximum of two weeks’ pay.
2. The Tribunal had erred if it rejected the claim on the basis that the claimant waived his statutory right by accepting Mr Draper as an alternative companion. The EAT adopted the reasoning in Toal & Hughes v GB Oils Ltd, [2013] IRLR 696, paras 23–26. The right could not be waived under section 203(1) of the Employment Rights Act 1996, as applied through section 14 of the 1999 Act.
3. The EAT followed Toal on the construction of section 10(1)(b). Once a worker has reasonably requested to be accompanied, the employer must permit a companion chosen by the worker, provided that person falls within section 10(3). The word reasonably qualifies the request to be accompanied, not the companion’s identity, qualities or suitability.
4. The court recognised the practical difficulty of a disruptive or otherwise objectionable companion. The statutory protection for the employer lies in section 10(3) and in compensation assessment. A justified objection, an alternative companion of equal or greater quality, or absence of prejudice may justify a reduced award, potentially nil.
5. Paragraph 15 of the ACAS Code pointed towards a broader construction. Under section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code had to be given some weight, but it did not overcome the clear statutory language.

No order for costs was made because the respondent had reasonable grounds for resisting the appeal.

• Employment Tribunal: The Tribunal rejected the claimant’s complaint that the respondent had breached his right to be accompanied under sections 10 and 11 of the Employment Relations Act 1999, while finding his dismissal fair.
• Employment Appeal Tribunal: The appeal was allowed. The section 11 claim was remitted to the Employment Tribunal for assessment of compensation.