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Right to be accompanied and breach of implied term of mutual trust and confidence

The High Court has granted a declaration permitting an employee to be accompanied at an investigatory hearing by a representative of his choice. The representative did not meet the employer’s contractual criteria.

Normally, an employee is not permitted to be accompanied at an investigation unless the employer operates a policy entitling an employee to be represented. The ACAS Code of Practice on Disciplinary and Guidance Procedures states that an employee may be accompanied at any disciplinary hearing by a work colleague or trade union official. Employers’ disciplinary policies commonly set out this right affirming the position in the Code.

In the case of Stevens v University of Birmingham, Mr Stevens was a clinical academic who worked for the University. It was a term of his contract that he would provide clinical duties as a consultant to the Heart of England NHS Foundation Trust. He was bound by two sets of terms and conditions of employment: the University’s and the NHS Trust’s. As a Consultant Mr Stevens was required to comply with the rules relating to Good Clinical Practice (GCP). On inspection by an external Agency, Mr Stevens was suspended pending investigation. He requested to be accompanied by a friend, Dr Palmer. Dr Palmer was neither a work colleague nor a trade union official. The University declined his request as it did not comply with the terms of his contract which had been negotiated and agreed with the union in 2008. The University did not want to set a precedent.

Mr Stevens argued that the refusal amounted to a breach of the implied term of mutual trust and confidence. He did not have any friends who were employees of the university and he was not a member of a trade union. He argued that his representative would make a significant difference and that if not permitted to attend he would be unaccompanied. He argued that the terms and conditions of the NHS Trust were more favourable and he should be allowed to rely on them in place of the University’s terms and conditions.

Mr Stevens sought a declaration from the Court that he should be allowed to be accompanied by a representative of his choice. The declaration was granted. The University did not have good and sufficient reason to deny his request.

This case is interesting as it seeks to challenge the right upon reasonable request to be accompanied by a fellow worker or trade union official set out under section 10 of the Employment Rights Act 1996 (and to reaffirm the position in Toal v GB Oils Limited UK). The case provided that workers should be free to choose which companion they wish to accompany them at a disciplinary or grievance procedure.

Employment Tribunal remedy

Where there is a specific concern regarding a choice of companion, employees who wish to enforce their right will need to issue a claim in the Employment Tribunal; with the maximum award available being  two weeks’ pay (subject to the statutory cap on a week’s pay of £475). If an employer agrees to an alternative companion (as in the case of Toal) any compensation is likely to be low.

Right to be legally represented

There is case law setting out an employee’s right to be legally represented at a disciplinary hearing in limited circumstances. The cases of Kulkarni-v-Milton Keynes Hospital NHS Foundation Trust and G-v-X School provide that this right may apply where the outcome of the hearing may prevent an employee from being able to practise a profession.

This article is not a substitute for legal advice on specific facts and circumstances. It is designed as a free update on the law at the time of publishing. Knight Polson Limited trading as QualitySolicitors Knight Polson accepts no responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

If you have any questions or would like to discuss the contents of the above article, please do not hesitate to contact us on knightpolson@qualitysolicitors.com  or 023 8064 4822.

 

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