Can an employer reject an employee's choice of companion for a disciplinary or grievance hearing?

Under s.10 of the Employment Relations Act 1999, employees have the right to be accompanied at a disciplinary or grievance hearing if they make a reasonable request.

The employer must allow the employee to be accompanied by a companion who is chosen by the employee from three categories, set out in s.10(3) of the Act. These categories are: a trade union official employed by the union; a trade union official who is certified in writing by the union as having the necessary experience or training to act as a companion; or another of the employer's workers.

In Toal and another v GB Oils Ltd EAT/0569/13, the Employment Appeal Tribunal (EAT) held that there is no requirement for an employee's choice of a particular companion to be reasonable, provided that the companion is within one of the categories set out in s.10(3). The Acas code of practice on disciplinary and grievance procedures was amended in March 2015 as a result of this case, as the previous version suggested that a request could be unreasonable due to the employee's choice of companion, for example the choice of a companion from a remote geographical location if someone suitable was available on site. The EAT in Toal found the wording of s.10 to be clear. Section 10 states only that the request to be accompanied must be reasonable, not that the choice of companion must be reasonable.

Therefore, an employer should not reject an employee's choice of companion if he or she falls within one of the categories in s.10(3).