Our trainee Employment solicitor, Andrew Rees, looks at the recent case of Gnahoua v Abellio London Ltd, in which the Employment Tribunal issued a favourable judgment to employers by ruling that compensation will be limited to only a nominal sum when an employer has understandable reasons for denying the statutory right of an employee to be accompanied to a disciplinary hearing or grievance meeting

The case involved a bus driver (“the claimant”) who was caught looking at his iPad whilst driving his bus. Abellio London Ltd (“the respondent”) initiated disciplinary proceedings against the claimant, who was represented by the Unite union. Following his disciplinary hearing, the decision was taken to dismiss him as a result of his actions. The claimant appealed and requested representation at the appeal hearing by a different union, the PTSC. His prospective representatives were two brothers (one of which had previously been dismissed by the respondent for harassment and intimidation) and who had been banned from accompanying any of the respondent’s employees to disciplinary hearings and grievance meetings given previous incidents of threatening behaviour towards staff and allegations of dishonesty. As such the respondent refused to allow the brothers to attend (although they did indicate that they would be happy for someone else from the PTSC union to attend) as a result, the claimant attended alone. The appeal was refused and decision upheld.

The Claimant brought claims in the Employment Tribunal (ET), including that the respondent had breached his right to be accompanied to a disciplinary hearing by a person of his choice as the companion met the statutory definition within section 10 (3) of the Employment Relations Act 1999 (i.e. is a colleague or trade union official). The ET accepted this and held in the claimant’s favour, however, the ET also acknowledged the strong grounds the respondent had for refusing the specific representation requested and therefore decided to award the claimant compensation payment of a mere £2.

Although this represents a victory for employers in circumstances where the employee’s choice of representative appears unreasonable, it is important to remember that this is only a first instance decision and so will not be binding on future tribunal cases with similar facts. It is also important to note that this case is perhaps more the exception rather than the rule and normally an employer would be punished more substantially if they fail to observe an employee’s right to be accompanied by who they so choose. An employer must have strong grounds for their refusal if the companion meets the statutory definition and a decision of the ET will very much depend on the specific facts of each case.