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Choice of companion need not be reasonable

Gillian Cumming
1st Nov 2013

Recently, the EAT decided that an employee’s choice of companion for a grievance meeting need not be ‘reasonable’.

 

In this case two workers raised grievances with their employer and as part of the employer’s grievance procedure they were allowed to bring a companion who was either a colleague or an accredited trade union representative. Both workers chose L, an accredited trade union representative who satisfied all legal requirements to be a valid companion. Despite L being a valid companion, the employer refused to accept L for both grievances and so both chose to bring someone else as their companion instead. Nevertheless, each employee later raised an employment tribunal claim in respect of their employer’s refusal to allow them to bring their first choice of companion.

 

The company argued that it had rejected their chosen companion on the basis of ‘reasonableness’. They found some support for this in the ACAS Code of Practice on discipline and grievance, which suggests that it might be reasonable for an employer to refuse an employee’s choice of a companion based at another site if someone at their place of work could act as companion just as effectively. This argument succeeded at the employment tribunal.

 

However, overturning the employment tribunal’s decision, the EAT ruled that there is no requirement for the employee’s choice of companion to be a reasonable one in terms of the legislation. Further, the ACAS Code of Practice could not be used as an aid in interpreting the legislation. The EAT was also concerned that allowing an employer to determine who would be a reasonable companion for an employee could cause an employee disadvantage.

 

The company also tried to contend that the employees had waived their right to their chosen companion by choosing and bringing another companion to their grievance meetings instead. The EAT rejected this argument on the basis that it is not open to an employee to waive a statutory right by agreement, unless it was done via a settlement agreement.

 

 

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