The claimant, a bus driver, was dismissed for gross misconduct after he was seen to be using his iPad whilst the bus he was driving was moving. He claimed that his right to be accompanied at his appeal hearing under the Employment Relations Act 1999 (see Employment Relations (Northern Ireland) Order 1999 and LRA Code of Practice for NI rights) was breached. The claimant had arranged for a member of Unite Union to accompany him at the appeal hearing but later decided that he would prefer a representative of the PTSC Union and an amended notice of appeal was lodged.

The company responded that it was happy for the change in representation, but that the two specific individuals listed as representatives were banned from participation due to previous allegations of threatening behaviour and dishonesty. The hearing was adjourned and the company again stressed its position with the claimant citing his statutory right to accompaniment by the companion of his choice. The claimant eventually attended the appeal hearing alone and refused to engage with the process, citing the severe prejudice caused to him. His appeal was refused. The tribunal upheld the claim with a nominal compensatory award of £2 made.

Practical Lessons

The tribunal accepted, as a general rule, that it was undesirable that employers should be able to choose an employee’s companion, which very often amounts to the same thing as vetoing their choice. The tribunal was also clear that there exists an unfettered right for employees to choose their own companion.

However, the tribunal had considerable sympathy for the respondent who it accepted tried to follow the ACAS Code of Practice and only sought to interfere in the representative choice based on strong grounds. Yet it was held that no loss or detriment was incurred by the claimant and, following the advice in Toal v GB Oils Limited [2013] IRLR 696, a nominal award of £2 was appropriate. Employers are consequently left with very little latitude to refuse particular representatives from attending disciplinary or appeal hearings. However, detriment above and beyond the obvious lack of representation must be demonstrated, otherwise only a nominal award will be made.
https://assets.publishing.service.gov.uk/media/58ca9d03ed915d0690000008/Mr_M_Gnahoua_v_Abellio_London_Ltd_2303661-2015_Full.pdf