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Choosing and managing companions: rights, risks and practical judgment
Adrian Fryer
Employees do not have a free choice of companion. Section 10 ERA 1999 limits the statutory right to:
- a work colleague, or
- a trade union official (employed by the union or certified as trained or experienced).
Where the companion falls within those categories, the employee has an absolute right to that person – as confirmed in Toal and Hughes v GB Oils.
Employers cannot insist on an alternative simply because they dislike the choice. The only protection is that compensation may be reduced if refusing the companion was justified – for example due to prior inappropriate behaviour. In Romello Shoaib-Brown v IQVIA IES UK Ltd, compensation was reduced where the chosen companion had been obstructive and rude in earlier meetings.
Beyond the statutory minimum, flexibility is often required. For disabled employees, allowing a friend or family member may be a reasonable adjustment. In Crew and Mason v Three Milestone Education Ltd, refusing to allow Ms Mason’s mother to attend her disciplinary hearing was both a failure to make reasonable adjustments, and disability-related harassment.
Policies and contracts may also widen eligibility, sometimes permitting partners, legal representatives or support workers. Even where they do not, small employers or language-barrier situations may justify a pragmatic approach.
Companions have defined – but not silent – roles. They can present the employee’s case, sum it up, respond to views expressed, and confer privately. They are not entitled to answer questions for the employee unless permitted. Tribunals are cautious about over-restricting this role. In Aslam v Sainsbury’s Supermarkets, barring a combative representative was held to be unfair where they were simply ‘fighting the employee’s corner’.
Employees can also postpone a hearing by up to five working days if their companion cannot attend, and work-colleague companions must be allowed paid time off for preparation and attendance.
Failure to comply can lead to compensation of up to two weeks’ pay per breach, automatic unfair dismissal if the employee is dismissed for exercising the right, and broader fairness challenges to any disciplinary outcome.
Handled well, the right to be accompanied can assist the process and make it run more smoothly and collaboratively. Handled rigidly, it creates legal risk.