Every employee has a right to be accompanied by a trade union representative or colleague when attending a disciplinary hearing. Care must be taken by employers when refusing the chosen person as a recent case shows.

In Stevens v University of Birmingham [2015], the High Court found that a university’s refusal to allow a representative of a profession defence organisation to accompany an employee at an investigation meeting concerning serious allegations of misconduct was unfair and a breach of the implied term of trust and confidence.

Although the express terms of the relevant contractual disciplinary procedure allowed a trade union representative or a staff member to attend a companion, the court held that these terms were modified by the overriding obligation of trust and confidence.
Stevens was subject to two contracts of employment, in an academic role with the university and in a clinical role with the NHS Foundation Trust. The alleged misconduct related to the conduct of clinical trials which was governed by both contracts. An important consideration for the court was the fact that Stevens would have been allowed his choice of companion under the Trust’s disciplinary procedure, had it initiated disciplinary proceedings rather than the university. Stevens however, had no control over which organisation chose to take the lead in the proceedings and strict adherence to the university’s disciplinary procedure would have denied the claimant the opportunity to be accompanied at all.

The guidelines for the implied term of mutual trust and confidence are that “employers must not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee”.

This case is quite unusual given Steven had two employers, where most only have one. However, what it does teach is that employers should take care in ensuring that the implied term of mutual trust and confidence is not breached when drafting a disciplinary procedure and where possible, try to be as accommodating as possible to the employee as to who employees may be accompanied by.

The role of the companion is not to answer for the employee at these hearings, but to provide support and assistance to them and so employers should try where possible, to be flexible about who this may be as the case above has shown.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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