Companions in disciplinary and grievance meetings: who chooses?

An employee attending a disciplinary or grievance meeting has a statutory right to be accompanied by a trade union official or a colleague. Statute sets out what the employee’s companion can or cannot do; and an employer who does not comply with the statutory companion duties can be ordered to pay up to two weeks’ pay (subject to the statutory cap on a week’s pay).

But what happens when the employer disagrees with the employee’s choice of companion (for example, because the employer believes that the companion will disturb the meeting, or that the companion is involved in the investigation, or that the employer has concerns about the companion’s approach to dispute resolution)?

A recent EAT decision (Toal v GB Oils) suggests that, as long as the companion falls within the statutory categories, the choice lies entirely with the employee. In doing so, the EAT expressly disagreed with the ACAS guidance on this issue. Subject to any appeal, the decision leaves employers with, effectively, two choices…

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