As most employers know, under section 10 of the Employment Relations Act 1999, employees have the right to be accompanied to a disciplinary or grievance hearing by either a trade union representative or a colleague.
There is no statutory right to be accompanied to an investigation meeting. Despite this, the High Court in England recently concluded that an employer’s failure to allow an employee to be accompanied at an investigation meeting by an individual, who was neither a trade union representative nor a colleague, was a breach of the implied duty to maintain the employee’s trust and confidence.
In this case, Professor Stevens was employed on two different contracts by an NHS trust and the University of Birmingham. He was facing extremely serious allegations of misconduct and the University took the lead in investigating those allegations for both employers. The University’s disciplinary procedure gave him the contractual right to be accompanied to an investigation meeting by a trade union representative or a colleague but, unlike the NHS contract, it did not allow him to bring anyone else with him. Professor Stevens was not a member of a trade union and the nature of his senior role meant he did not know any colleagues sufficiently well so he asked to be accompanied by Dr Palmer, a representative of the Medical Protection Society (MPS). Not wishing to set a potentially unhelpful precedent, the University refused to let Dr Palmer attend, even though Professor Stevens would have had the right to bring him if the NHS had taken the lead in the investigations and even though NHS employees giving evidence to the investigation were allowed to bring MPS companions.
Given the potentially very serious implications of the investigation for his career, Professor Stevens wanted to clear his name and rather than resigning and bringing a claim for constructive dismissal therefore, he applied to the High Court to decide:
- whether he had an express contractual right to be accompanied by Dr Palmer in these circumstances; and
- whether the University’s refusal generally breached the implied term of trust and confidence which must exist between employer and employee.
The High Court concluded that, as a matter of fact, Professor Stevens had no express contractual right to bring Dr Palmer as his companion even though he would have had that right if the NHS had taken the lead in the disciplinary investigation. Nonetheless, it found that in refusing his choice of companion under the circumstances, the University had generally acted unfairly and it made a declaration that the University had breached the implied term of trust and confidence between employer and employee. Unusually, the court did not find that the breach ended the employment relationship, which raises the possibility that an employee can complain about breach of the implied term, while choosing not to resign in response to it, so that the employment relationship continues.
View our expert comments on the court's decision regarding an employee's right to be accompanied at an investigation meeting here.