Can your employer refuse your choice of union rep?
In Gnahoua v Abellio London Ltd 2303661/2015, a tribunal awarded nominal compensation of £2 to a bus driver after his employer refused to allow the employee's chosen companion to accompany him to a disciplinary appeal hearing.
Claimant Mr Gnahoua was employed as a bus driver by Abellio London Ltd, and he was dismissed on the grounds of gross misconduct after he was caught using his iPad whilst driving. He was invited to a disciplinary hearing and represented by a Unite trade union official. After the disciplinary hearing, the decision was taken to dismiss Mr Gnahoua.
He then appealed the decision to dismiss him, and, in advance of the disciplinary appeal hearing, he informed his employer that he would prefer to be accompanied to same by a member of the PTSC Union, as opposed to a representative from Unite.
The two PTSC representatives were brothers who had been banned by Abellio London from representing staff in such hearings on the basis of one brother's previous "threatening behaviour" and the previous "dishonesty" of both.
One was a previous employee of Abellio London Ltd, and had been dismissed from the company following allegations that he had harassed and bullied another member of staff. After being dismissed, this brother lodged tribunal proceedings, in which he was represented by his other brother. The claim was eventually struck out by a tribunal on the basis of vexatious conduct after both brothers were accused of falsifying the date on a witness statement.
In light of the employer's previous knowledge of the pair, the decision had been taken to ban them from representing staff at disciplinary hearings. Abellio London Ltd indicated to Mr Gnahoua that, whilst they were happy with any other individual from the PTSC Union attending the hearing to represent him, it was not prepared to permit either of these brothers to attend.
The claimant subsequently attended the hearing alone, refused to engage in any meaningful manner in the process, and his appeal was dismissed. Mr Abellio then lodged tribunal proceedings, with part of his claim that he had been denied his statutory right to be accompanied at his disciplinary appeal hearing.
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The tribunal accepted that technically the employer had breached the claimant's right to be accompanied, however, it went on to award the nominal sum of £2 in respect of this breach, as it held that Mr Gnahoua had failed to establish that he had suffered any loss or detriment, and that the employer had strong grounds for their refusal to allow the two brothers in question to attend the appeal hearing.
The tribunal said: "Like all strict rules, there are policy reasons for its imposition which can sometimes lead to hard cases. As a general rule it is undesirable for an employer to choose the employee's companion or (which is often very much the same thing) to exercise a veto over his choice. In the present case it is hard to criticise the actions of the respondent and we make no criticism. They have followed the Acas code of practice [see Labour Relations Agency Code of Practice in Northern Ireland] and have only sought to interfere in the choice of companion on strong grounds".
In summary, employees should always be offered the right to be accompanied to disciplinary hearings. The Employment Relations (NI) Order 1999 defines a suitable companion as a work colleague or trade union official, and it seems on the basis of the Abellio decision that, as long as the chosen individual satisfies this criteria, it will be a breach of the employee's statutory right for the employer to refuse a particular representative from attending.
However, the tribunal in this case was sympathetic to the employer, and said the failure to allow the claimant to be represented by his chosen companion as no more than a "technical breach" and awarding a small sum in respect of the breach.
To be entitled to anything more than nominal compensation, the employee would likely have to demonstrate actual loss or detriment over and above the obvious lack of representation.
- Katie Buchanan can be contacted on 028 9043 4015 or katie@ worthingtonslaw.co.uk