HR and people managers who regularly deal with disciplinary and grievance issues will be familiar with the situation where an employee requests to be accompanied to an internal hearing by someone who isn’t a trade union representative or work colleague. The usual position is that they do not have this right in law and therefore the request can be declined with relative confidence. However, just to keep us all on our toes the High Court have made a decision in the recent case of Stevens v University of Birmingham which tests this perceived wisdom.
Section 10 of the Employment Relations Act 1999 provides workers with the statutory right to be accompanied by a trade union representative or a fellow worker at a disciplinary or grievance hearing and this right is repeated in the ACAS Code of Practice on Disciplinary and Grievances and most internal disciplinary and grievance procedures, however as this case shows the story does not end there.
In Stevens the Claimant was employed by the university as a Chief Investigator of clinical trials. His contract of employment was dependent on him having an honorary appointment with the Heart of England NHS Foundation Trust (HEFT). Disciplinary investigations were started against the Claimant by the university after allegations were made about the way in which he conducted the trials. He was invited to an investigatory meeting and was informed by the university that he could be accompanied to the investigatory meeting by a trade union representative or a university employee as set out in their disciplinary procedure.
The Claimant requested to be accompanied by the MPS (Medical Protection Society) representative who had supported him through the allegations and had the necessary technical knowledge of the clinical trials that he had been conducting. He claimed he had no friends at the university who could accompany him as they would all be involved in the investigation as witnesses. The university refused this request and the Claimant commenced proceedings in the High Court for appropriate declarations of his rights.
The Court rejected the Claimant’s arguments that there was an express or implied term of his contract of employment that allowed him to be accompanied by someone from MPS. However, the Court did take into account the fact that if the HEFT disciplinary procedure had been used he would have be entitled to be accompanied to the investigatory meeting by an MPS representative.
The High Court held the right to be accompanied by a work colleague or trade union representative was intended as a minimum level of protection to ensure a fair outcome and therefore there was nothing to prevent the university from exercising their discretion by allowing the Claimant his choice of companion. The Court came to the conclusion that even though there was no contractual right for the Claimant to be accompanied it was nevertheless a breach of the implied term of mutual trust and confidence to deny his request. This decision that it would be unfair for the university to proceed without allowing the Claimant his choice of representative was reached on the specific facts of this case for the following reasons:
1) A companion with a good grasp of the relevant technical issues was needed.
2) It was not realistic for the Claimant to bring a university colleague because all his friends who worked at the university would already be involved in the process as witnesses.
3) The HEFT disciplinary procedure would have allowed the Claimant his choice of companion.
4) The witnesses to the investigation had been allowed a wider choice of companion.
5) The MPS representative was from an organisation similar to a trade union.
6) The outcome of the disciplinary process was potentially career ending for the Claimant.
This case goes further than you would at first think when you take into account the fact that the case revolved around the right to be accompanied at an investigation meeting not even a disciplinary hearing. It is therefore important for people who conduct disciplinary and grievance processes to view the situation in the round and take into account the impact that their decisions will have on the employee who is the subject of the process rather than always sticking rigidly to the letter of their organisation’s procedure.
Employees who have been denied the right to be accompanied can bring a claim for up to two weeks pay as a stand alone claim but what is of more critical importance is that employers who breach the implied term of mutual trust and confidence run the risk of the employee resigning and claiming constructive dismissal. An employee with more than two years’ service can bring an unfair constructive dismissal claim in the Employment Tribunal where the compensatory award is capped at the lower of 52 weeks’ gross pay or £78,335.
This was an unusual case but it is not difficult to think of other situations in which employers may inadvertently breach trust and confidence by refusing an employee’s request to be accompanied. For example if an employee does not speak English it may be unfair not allow a family member or friend to accompany them as an interpreter and in some situations it may be a failure to make reasonable adjustments as well as a breach of trust and confidence not to allow a disabled employee their choice of companion.
As with many aspects of employment law the Stevens case demonstrates that things are not as straight forward as they seem at first glance which is what makes it fascinating and frustrating in equal measure!