Refusal to allow employee's choice of companion was a breach of trust and confidence

2015-08-17 Philip posted:

The High Court has held that a university's refusal to allow a representative of a professional 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 contractual disciplinary procedure allowed a trade union representative or a staff member to attend as a companion (as set out in section 10 of the Employment Relations Act 1999), the court held that these terms were modified by the overriding obligation of trust and confidence.

Professor Stevens was subject to two contracts of employment: an academic role with the University of Birmingham and 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 the Professor Stevens would have been allowed his choice of companion under the Trust's disciplinary procedure, had it initiated disciplinary proceedings rather than the university. However, the claimant 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 ACAS Code of Practice (recently amended to reflect that the employer has no choice about the companion provided they fit within the criteria) only applies to disciplinary and grievance hearings and does not require an employee to be a member of the union to allow a union representative. However, it does say that in some circumstances the employer should consider expanding this. Whilst normally we think of situations where the employee is disabled or vulnerable, this too might be one of the exceptions.

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