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Tribunal awards £2 compensation for breach of right to be accompanied (Gnahoua v Abellio London)

Tribunal awards £2 compensation for breach of right to be accompanied (Gnahoua v Abellio London)

In this case, the Claimant, Mr Gnahoua, was awarded only £2 as compensation after he was denied the right to be accompanied at a disciplinary hearing by his employer.

The case involved a bus driver who was summarily dismissed from his employment after looking at his iPad whilst the bus was moving. Before his appeal hearing, Mr Gnahoua joined the PTSC Union, which had the reputation of putting up a ”robust” defence, however two of the leading figures within the Union, John and Francis Neckles, were specifically banned from accompanying employees to hearings as they were guilty of threatening behaviour towards members of staff, dishonesty and had a costs order made against them in a previous Tribunal hearing. Mr Gnahoua however, wanted one of those individuals to represent him. The employer refused his request, and as a result he attended his appeal hearing alone. The Tribunal found that the appeal hearing was conducted in a “considerate and thorough fashion”.

The Tribunal held that Mr Gnahoua was denied the right to be accompanied and he was awarded £2 as compensation, however his separate claim for detriment as a result of the refusal of the right failed.

This case follows the principle set out in Toal v GB Oils Limited, although the key difference in that case was that the Claimant had arranged for an alternative representative. The principles are as follows:

  • The employer had breached the Claimant’s right to be accompanied by not allowing their chosen representative to accompany them. The choice of companion does not have to be reasonable.
  • The compensation is not a penalty or a fine – it is to recompense for a loss or detriment suffered. The Tribunal “shall order the employer to pay compensation” and does not have the right to say that no compensation should be payable. Where a Tribunal is satisfied that no loss/detriment was suffered by the employee, a tribunal should make a nominal compensation only of £2.

Toal established the principle that there is an unfettered right for the employee to choose their companion.

Looking at the representatives themselves, the Tribunal cannot consider the nature or qualities of the chosen companion (as long as they are a Trade Union representative or another worker) and is limited to considering whether it was reasonable for the employee to request a companion.

There are clear policy reasons for the rules regarding representation and although it is undesirable for an employer to choose the employee’s companion or to exercise a veto, there is little financial deterrent for an employer from doing so. The Tribunal said that it was hard to criticise the actions of the employer in this case as they had followed the ACAS Code of practice and have only sought to interfere in the choice of companion on strong grounds.