21 August 2015

Employees have a limited statutory right to bring a “companion” to a disciplinary or grievance hearing – a colleague or authorised representative of a trade union. The contract of employment or disciplinary policy might allow others to attend, outwith that category. But can there ever be an obligation on the employer to allow a companion who is not permitted by the legislation or the relevant policy?

Previous cases have suggested that in exceptional circumstances, where the disciplinary allegations are “career ending” an employee might be entitled to a legal representative at the hearing.

Now, in the case of Stevens v University of Birmingham, the High Court has said that in some cases, failing to allow a companion who was not permitted by statute or the employer’s policy to attend, could be a breach of the implied duty of trust and confidence (the implied contractual term on which many claims for constructive dismissal are based). The Claimant was subject to serious allegations and was invited to a disciplinary investigation. His employment contract entitled him to a trade union representative or colleague at that meeting (the statutory right does not in fact apply to investigation meetings).

The employee was not a member of a union, and there were no suitable colleagues he would want to accompany him. He was a member of the Medical Protection Society (MPS) (not a Union) and had received assistance from one of their representatives, Dr Palmer. He wanted Dr Palmer to accompany him at the meeting.

The court held that the employer would be in breach of the implied term of trust and confidence in refusing to allow Dr Palmer because of (a) the inequality of the parties’ respective positions, (b) the serious nature of the allegations, and (c) the MPS served a similar function to a union. The court felt the employee’s position was unsustainable, rejecting the argument that to depart from the strict terms of the policy would open the floodgates for future disciplinary processes.

A cautionary tale that in some cases, it may be so unreasonable to allow a companion who is not a colleague or a Union rep, that the employer is in breach of contract, despite having sought to comply with the express terms of the contract!