The recent case of Stevens v University of Birmingham (2015 EWHC 2300) questioned whether a refusal to allow an employee to be accompanied to an investigation meeting by a companion who was not a trade union representative or follow employee was correct or reasonable. Stevens claimed the refusal was a breach of the implied duty of trust.
Statutory right – Workers have a statutory right to be accompanied (that is not the same as being represented – speak to Alcumus and we will clarify the difference for you!) at a disciplinary or grievance hearing by a fellow employee or a trade union representative. This technically only applies to a formal hearing and therefore an ‘investigation’ meeting falls outside this definition, but some employers will allow accompaniment at investigation meetings too.
Often an employee will request to be accompanied by a family member and workers under 18 have the right to be accompanied by a parent or guardian. In ill health cases a worker might ask to be accompanied by a support worker. Whilst you are not obliged to agree to such requests, these cases should be considered on a case by case basis and with the support of your Alcumus consultant. However it appears that consistency, as well as what you allow not only the Claimant, but also witnesses to the case, is also relevant.
Case law – In the case of Stevens v University of Birmingham however doubt has been cast as to whether wider considerations need to be made when an employee makes a non-statutory request for accompaniment. In this case Stevens’s contract allowed him the statutory minimum choice of accompaniment however he was not a union member nor did he consider there was a suitable employee to support him. He had, however, from the date of the allegations been assisted via the Medical Protection Society (‘MPS’) by a representative, Dr Palmer.
Prof. Stevens won his case and consideration was made regarding the fact that witnesses who were interviewed during the investigations were given a wider right to be accompanied. Furthermore the court concluded that the language of the section of the university’s disciplinary procedure was about entitlement to be accompanied but was not specific about who an employee could be accompanied by. As such there were no express terms in this regard and that gave the employer discretion to consider a wider group.
In reaching their decision, the court was also influenced by the fact the investigating officer was accompanied at the meeting by a HR Consultant and another member of staff to provide him with technical assistance. Further considerations were also made to the potential seriousness of the allegations and the effects on his career and that professional defence organisation play a similar role to a trade union.
Our advice – It is now apparent that in certain special cases employers would be best advised to give consideration as to whether to allow an employee the right to be accompanied by his/her chosen companion. However in the main the statutory right to be accompanied only by a fellow employee or trade union representative will be fair but it is even more essential that a) your handbook or terms and conditions of employment are clear and consistent, b) that the appropriate people are trained in what is and isn’t reasonable, and c) that you seek the support and advice of your Alcumus consultant before you make any decisions.