Compensation for Right of Accompaniment Breach

One of the factors that strikes many employee’s as perverse (with good reason) is that an employment tribunal, when it finds that an employer has unfairly dismissed an employee, can (and often does) offer no compensation for that breach of their legal rights.

In the recent tribunal judgement of Pullar v Tangerine (2020) that is exactly what it decided should happen and so, despite the finding of unfair dismissal, the dismissed employee was awarded nothing.

However, in addition to the unfair dismissal claim the employee also alleged that the employer had infringed their right to be accompanied by a fellow worker or trade union representative. Here, again, the employment judge found in the claimant’s favour.

The facts of that claim are themselves independently interesting. Mr Pullar was invited to a disciplinary hearing on 4 July and, in line with his s.10 rights asked for a work companion to attend with him. Because of the companions unavailability (because of a work clash) the claimant, again in line with his s.10 rights asked for the meeting to be re-arranged to five working days later, namely the 11th July. However, in what was already a technical breach of s.10(5) the employer deferred the meeting beyond the 5 day limit to 12 July. On 12 July, at the time of the meeting, the employer had arranged (there is not finding whether it was deliberate or not) for the companion to be busy in other work and so unavailable to accompany the claimant. After the request the employer was, under s.10(6) obliged to give the companion time of but did not and so this was a breach of the worker’s right to be accompanied.

The judge made no decision as to what compensation Mr Pullar should be entitled to for this breach of his rights but clearly envisaged that, as in the unfair dismissal claim, one possibility was that he should be awarded no compensation at all:

174. A remedy hearing is listed for 14 May 2021. Under Section 11(3) ERelA the
remedy for a failure to permit an employee to be accompanied by a relevant
representative is limited to an amount not exceeding 2 weeks’ pay. The amount of a
week’s pay is capped at £525. On that basis the remedy is anything from nil up to £1050.

Based on the findings one suspects the case will never see the light of the tribunal again but it appears to be that this direction is wrong on the law. Where a breach of the right of accompaniment is found then a judge certainly does have discretion to award anything up to £1,050, but they do not have the discretion to award nothing as the judge here asserted. The reason for this is because section 11(3) of the Employment Relations Act 1999 states that “Where a tribunal finds that a complaint under this section is well-founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks’ pay.”

In the important case of Toal (and affirmed in other subsequent cases) “shall” was interpreted to mean a requirement to award something more than nothing in financial remedy:

Parliament has, however, provided that when a Tribunal finds a complaint well founded “it shall order the employer to pay compensation”. That suggests to us that the Tribunal does not have the right to order that no compensation should be payable. Accordingly, in a case in which it is satisfied that no loss or detriment has been suffered by an employee, the Tribunal may well feel constrained (and in our view should feel constrained) to make an award of nominal compensation only, either in the traditional sum now replacing 40 shillings – £2 – or in some other small sum of that order. (32)

And so, unlike an unfair dismissal case, if a claimant is successful in a failure to give the right of accompaniment to a worker then they must always be awarded financial compensation. Whether the right to a nominal award (which again seems to be quite frequent) is itself an adequate remedy such that an employer feels under any incentive to comply with the law is another matter.