Title

Autem vel eum iriure dolor in hendrerit in vulputate velit esse molestie consequat, vel illum dolore eu feugiat nulla facilisis at vero eros et dolore feugait

Choice of companion at disciplinary hearing: who can you have?

It is fair to say that when it comes to the unfortunate business of disciplinary matters that a great many employers and employees are aware in advance as to the level of support an employee may have in the room during the relevant meeting(s).

The statutory minimum provides that a work colleague or trade union representative may be brought in by the employee being disciplined as a companion, an officious note taker and asker of questions that otherwise may not have been asked. Legally compliant employment contracts and disciplinary policies generally echo this position of course.

There are however occasions where individuals find that they are without either the support of a trade union or an appropriate colleague. In such circumstances we often get the common question as to can the employee being disciplined bring in their mother, brother, next door neighbour etc. The answer to this question is near enough always yes, however only if the employer agrees to this; beyond the statutory minimum referenced above, anyone else is admitted as a companion at the discretion of the employer.

In certain instances however, this may not be as clear-cut as it seems. The recent High Court case ofStevens v University of Birmingham has illustrated this in a rather interesting fashion.

Professor Stevens was the Chief Investigator in relation to clinical trials being run to assist sufferers of diabetes. In the process of his role Prof Stevens was the subject of misconduct allegations, based around a lack of oversight among other things.

Prof Stevens was later invited to a disciplinary investigation. His employment contract only entitled him to the statutory minimum in relation to being accompanied during the disciplinary process; a colleague or union representative. Prof Stevens was not a member of a union, nor did he have any colleagues that would have been suitable to accompany him. The support he had the benefit of since the outset of the allegations came in the form of one Dr Palmer, a representative from the Medical Protection Society (“MPS”).

The University took a firm stance on its policy in relation to accompaniment, citing fears that were it to allow Prof Stevens the benefit of Dr Palmer’s assistance, this could set a precedent and unravel the policy which had taken some four years to negotiate via collective bargaining with the academic staff.

The argument from Prof Stevens that the University was breaching the implied term of trust and confidence between employer and employee in seeking to block the participation of Dr Palmer, who was somewhat especially suited to help Prof Stevens due to his own background in clinical trials, succeeded.

The Court held that this implied term had been breached owing to the seriousness of the allegations, the perception that there was an inequality of arms between the parties, that the MPS served a similar function to a trade union and finally that Prof Stevens had been permitted the assistance of Dr Palmer up to the point of the disciplinary investigation. The Court therefore granted a declaration to that effect, stopping short of an injunction, there being no reason to doubt that the University would abide by the terms of the declaration.

Conclusion

While somewhat unique on the specific facts, there is much to be taken from this decision. Arguably then, where a matter is sufficiently serious and some or all of the remaining factors of the court’s declaration are present, there could be scope for an employee to insist upon a companion who is neither a colleague or a union representative on the basis that to deny them this would amount to a breach of the implied duty of trust and confidence. If such a breach had occurred, this could then entitle that employee to resign and claim constructive dismissal.

To our minds it appears the intransigence of the University in the Stevens case was the core reason for the case being brought. While this was a stand in relation to a hard negotiated policy, it was perhaps the wrong stand to take on the specific facts of Prof Stevens’ matter.

Similarly, other employers should be wary of taking similar rigid stands where to allow an employee a more unconventional companion would perhaps be reasonable and enable the matter to move forward without claims on technical points as with Prof Stevens, or worse, outright resignation and a claim for constructive dismissal.

As always, if I can provide you with any further assistance in relation to disciplinary hearings or any other employment law matter please do not hesitate to contact me for a free consultation on 0113 350 4030 orsamira.cakali@scesolicitors.co.uk.


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

%d bloggers like this: