11th November 2015

Nothing Compares To You: Chosen Companion

Employees have a statutory right be accompanied at disciplinary hearings.  Who can be a companion at such meetings?  Can it be a friend?  A parent?  A lawyer?  Section 10 of the Employment Relations Act 1999 provides that the right to bring a companion at a disciplinary hearing means either a work colleague or a trade union representative.  This statutory right to be accompanied applies to disciplinary hearings – it does not extend to investigatory hearings.  However, an employer’s own policies or procedures might provide for a right to be accompanied at investigatory hearings.

In Stevens v University of Birmingham, the employer’s disciplinary policy conferred a contractual right for employees to be accompanied at investigation meetings by either a work colleague or trade union representative.  Mr Stevens was required to attend an investigatory meeting.  He had a difficulty identifying a companion within the contractual goalposts because he was not a member of the trade union and he did not have any suitable colleagues employed by the University who could serve as his companion.  From the outset of the allegations, Mr Stevens had been represented by a professional body, the Medical Protection Society.

The High Court found that the employer’s refusal to allow Mr Stevens to be represented by his chosen companion amounted to a breach of mutual trust and confidence which is implied into all employment contracts.  The Court placed weight on the fact that the MPS advisor was similar to a trade union representative and also the fact that the University had allowed the employee to be represented by that body at an earlier stage in the proceedings.  The seriousness of the allegations and the perceived inequality between the University (who did have specialist advisors) and the claimant was also relevant.

Although fact specific, this case demonstrates that the right to be accompanied at disciplinary investigation meetings will not always be confined to trade union representatives or work colleagues, even if that is what the contract says.  Employers should take care to be familiar with the terms of the disciplinary procedures.

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