In a recent case an Employment Tribunal considered whether an employer had breached an employee’s right to be accompanied to a disciplinary hearing and if so, what level of compensation would be appropriate.
In the case the employer had a policy of refusing to allow employees to be accompanied by two brothers who were union officials. This policy was due to the fact that, in other proceedings which had been brought by one of the brothers against the employer, the tribunal awarded £10,000 costs against both of the brothers because of their vexatious conduct including falsifying the date on a witness statement. The employer’s view was that the brothers should not be permitted to be representatives given their attempt to obtain substantial compensation from the company using dishonest means. Due to this policy, the employee in question was not permitted to have one of the brothers as a representative.
The Employment Tribunal decided to award compensation of only £2 for the breach of the right to be accompanied which is contained under section 10 of the Employment Relations Act 1999. The Employment Tribunal followed an earlier decision of the Employment Appeal Tribunal (EAT) which stated that, provided the companion is an employed trade union official, a certified trade union official or a colleague, the employee has an unfettered right to be accompanied by their chosen companion. That said, the EAT case had suggested that where an employee has not suffered any loss or detriment on account of the right being breached, nominal compensation would be an option for the Tribunal. In this case, the employee had not suffered any loss or detriment and the employer was found to have conducted the disciplinary hearing in a thoughtful manner (albeit the right to be accompanied had been breached).
The case demonstrates the importance of employees’ right to representation at disciplinary and grievance hearings; however, it also confirms that, where no damage was caused by a breach, the employee will not be entitled to substantial damages. It should be noted, however, that even where large compensation awards are not granted, claims brought in the Employment Tribunal are often very expensive for employers.