The Right to Be Accompanied – How Far Does it Extend?

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An employee has the statutory right to be accompanied to a disciplinary hearing by a union member or a work colleague. We have seen recent case law concerning how much latitude the employer has to fetter that discretion concerning a work colleague but the High Court has found in the case of Stevens v University of Birmingham that on the facts of that case the choice of companion is not as simple

In this case the Claimant was in an academic role with the Respondent but was subject to allegations around his conduct in his role as Chief Investigator in clinical trials. The Claimant was invited to attend a disciplinary investigation meeting and was given the statutory right to be accompanied which was also his contractual entitlement. The Claimant was not a member of a union and felt that any colleagues were unsuitable to accompany him. Up to that point, the Claimant had been supported by a representative of the Medical Protection Society (MPS) and he wished to have this same representative accompany him to the meeting. This request was denied and the Claimant argued that the denial of his choice of representative, beyond his contractual and statutory entitlement, was a breach of the implied term of trust and confidence.

The High Court, on the facts of this case, agreed that there had been a breach of the implied term of trust and confidence. This could have been due to the business of the Respondent and the professional implication of the allegations being upheld for the Claimant given that the Court’s rationale centred upon the seriousness of the allegation as well as the inequity of the circumstances. The Court also had in mind the fact that the MPS performed an advisory function akin to a union representative and that up to that point the assistance of the MPS representative had been permitted.

It could be that the facts are limited to this case but it serves as a cautionary warning to employers to consider carefully, before declining representation for the employee, not only in terms of the natural justice for employment processes but that the decision could breach the implied term of trust and confidence. Employers should consider the request on a case by case basis.

Written by
Edward Aston
1st October 2015