In a nutshell
What is it all about? There may be certain situations where the failure of an employer to allow an employee to choose a representative at a disciplinary hearing, beyond statutory or contractual entitlement, may amount to a breach of the implied duty of trust and confidence and therefore lead to constructive dismissal.
Why should you care? Up until now it has been commonly accepted law to say that an employee is only entitled to be accompanied to a disciplinary investigation by either a colleague or a trade union representative. A recent case would support the proposition that there may be circumstances where employers will have to allow companions which would ordinarily fall outside the accepted rules.
What do you need to do now? Give thought as to who is allowed to attend disciplinary proceedings to act as a companion. If requests are made which fall outside the usual “norms” careful consideration should be given as to whether or not it would be sensible to apply discretion to the request.
Get in touch: If you would like to speak to someone about the issues raised, please call contact Ewan Stafford or find out more on our employment law page.
Professor Stevens was the chief investigator responsible for the scientific and overall conduct of five randomised controlled clinical trials at University of Birmingham. Following an investigation by a regulatory body, Professor Stevens was invited to a disciplinary investigation.
Under university policy, Professor Stevens was entitled to be accompanied to investigation meetings by either a colleague or trade union representative. Professor Stevens did not feel that he had friends within the university who would be suitable to accompany him and was not a member of a trade union.
He was, however, a member of the Medical Protection Society (MPS) a medical defence organisation. Dr Palmer, of the MPS, had previously accompanied him to meetings so Professor Stevens requested that he be accompanied by Dr Palmer to the disciplinary investigation. This request was denied.
Professor Stevens argued that the failure of the university to depart from its usual procedure amounted to a breach of trust and confidence.
The court took account of the unusual circumstances of the case. In particular:
- The perceived inequality between the parties
- The complex nature of the allegations
- MPS was effectively performing the function of a union
- Dr Palmer had previously been allowed to assist Professor Stevens.
The facts of this case are quite complex as were the issues to be discussed at the investigation meeting.
The case opens up the prospect that if an employee is not allowed their choice of companion to a disciplinary hearing then that they may resign and complain that they have been constructively dismissed.
There may be limited circumstances where an employee will not be able to bring a trade union representative or a colleague or have legitimate needs to be otherwise accompanied, perhaps for reasons arising from a disability. In such circumstances, especially if the facts are particularly complex, then it may be sensible for an employer to allow for a companion outside of the normal disciplinary rules to attend.
Get in touch
Employers should be proactive in establishing what is required of them when conducting disciplinary proceedings. If you require any help or further information of the impact of these proposed regulations on your business please don’t hesitate to contact one the employment team.