Toal & Anor v GB Oils Ltd

Under section 10 of the Employment Relations Act 1999, the requirement that a worker make a reasonable request qualifies the request to be accompanied, not the worker’s choice of companion. Subject to the statutory eligibility requirements, the companion is chosen by the worker.

An employer’s refusal to permit the chosen eligible companion is a breach which the worker cannot waive by obtaining another companion for the hearing. Compensation under section 11(3) is recompense for loss or detriment, not a penalty. A tribunal must award compensation for a well-founded complaint, but may award only a nominal sum where no loss or detriment is proved.

Two employees raised grievances with their employer. Each requested to be accompanied at grievance and appeal meetings by Mr Lean, an eligible certified trade-union official. The employer refused that request. The employees then used other companions at the meetings.

The Employment Tribunal held that the statutory requirement of reasonableness did not govern the choice of companion. It nevertheless dismissed the claims on the basis that the employees had waived the employer’s potential breach by proceeding with alternative companions.

The employees appealed. The issues were whether the employer could refuse the workers’ chosen eligible companion, whether the employees had waived the resulting breach, and how compensation should be assessed.

1. Appeals allowed. The employer’s refusal, after it had invited the employees to grievance and appeal hearings, to permit Mr Lean to accompany them was an actual breach of section 10 of the Employment Relations Act 1999.

2. The word “reasonably” in section 10(1)(b) qualifies the worker’s request to be accompanied. It does not qualify the worker’s choice of companion. Section 10(2)(a) requires the employer to permit a companion chosen by the worker, provided that person falls within section 10(3). Parliament could have made the choice itself subject to reasonableness but did not do so. The statutory postponement provisions where a chosen companion is unavailable do not create a wider employer power to select the companion.

3. Paragraph 36 of the ACAS Code was not an aid to construing the clear statutory language. An ACAS Code issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 could not fill an alleged gap in the statute. There was no gap in any event.

4. The employees could not waive the employer’s breach by accepting alternative companions. Following Secretary of State for Employment v Deary [1984] ICR 413, the statutory protection against contracting out applied through section 14 of the Employment Relations Act 1999 and section 203 of the Employment Rights Act 1996. Their conduct necessarily involved a tacit agreement to waive the breach and was ineffective.

5. Section 11(3) required compensation, capped at two weeks’ pay, rather than a penalty. The tribunal had to determine any loss or detriment caused by the breach. If none was shown, it should make a nominal award rather than no award. The cases were remitted to the Employment Tribunal to assess compensation.

• Employment Appeal Tribunal: appeals allowed and the claims remitted for assessment of compensation: [2013] UKEAT 0569_12_2205.

• Employment Tribunal: dismissed the claims, holding that the employees had waived the employer’s breach by proceeding with alternative companions. The lower decision’s citation was not stated in the judgment.