News & Views

Who can an employee choose as their companion in disciplinary hearings?

BY Heather Kemmett
Employment law
BG Purple

A recent High Court judgment has considered whether a claimant had a contractual right to be accompanied to an ‘investigation meeting’ as part of disciplinary proceedings by a person who was neither another member of staff nor a union representative.

In the case of Stevens v University of Birmingham [2015] EWHC 2300, the claimant, (Professor Stevens) was seeking a declaration to allow him to be accompanied by another person that did not meet the criteria as required by the University conducting the investigation. 

Workers and employees have a statutory right under section 10 of the Employment Relations Act 1999 to be accompanied by a trade union representative or another member of staff. This right usually applies if the worker makes a ‘reasonable request’ and only applies to a formal disciplinary hearing, and not to investigation meetings. However most employers will consider such requests on a case by case basis and will often allow workers some discretion in their choice of companion, whether that be as a reasonable adjustment or more simply to ensure that the employee concerned attends a meeting. 

In this case, the claimant explained that he was not a member of a trade union, and had little interaction with other employees of the University. The court had to decide: 

1)  Whether the claimant had a contractual right to be accompanied by his choice of person; and  

2)  If not, whether the University’s refusal to allow the claimant’s choice of person to attend as a companion was a breach of the implied terms of mutual trust and confidence.

The High Court held that there was no contractual right, either express or implied, requiring the University to allow the claimant’s choice of person to attend.  

However, the University’s refusal to allow the claimant’s chosen companion to attend the investigation meeting was a breach of the implied term of mutual trust and confidence between employer and employee. The court held it would be ‘patently unfair’ to make the claimant attend the meeting alone. 

The decision means that, in certain cases (for example where there are unusual contractual arrangements), it could be a breach of the implied duty of trust and confidence not to allow an employee to be accompanied by his chosen companion.  However, employers can take comfort from the judge’s comments that, "in many cases", a right to be accompanied by a fellow worker or union representative will be "perfectly fair" and that employers can still be able to refuse requests for wider accompaniment. 

The decision demonstrates that each case has to be considered on its individual merit and that, in rare cases, employees may have a wider choice of companion than provided by their statutory or contractual rights.

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