The answer is yes, as decided in the recent case of Stevens v University of Birmingham. In this case, the Claimant was an academic at the University, who was subject to allegations regarding his role as Chief Investigator of clinical trials for patients suffering from diabetes. He was invited by the University to a disciplinary investigation. The Claimant’s contract entitled him to have representation from a trade union representative or work colleague. The Claimant was not a member of a trade union and there were no suitable colleagues to accompany him.
The Claimant therefore requested to be accompanied by the Medical Protection Society, who were able to provide a representative.
The University refused to allow the Claimant to have the assistance of the Medical Protection Society despite them having assisted him up until this point, on the basis that this would deviate from the Universities Disciplinary Procedure, which had taken significant effort to agree with the Universities Union. In addition they did not want to set a precedent.
The Court held that the University had breached the implied term of trust and confidence owed to the Claimant in failing to allow the Claimant representation by the Medical Protection Society.
They came to this decision based on the facts that the Medical Protection Society undertook a similar function to a trade union, that he had been permitted assistance from the Medical Protection Society by the University up until the disciplinary hearing, the seriousness of the allegations against the Claimant (and any potential ramifications on his career) and the disadvantage the decision would have in terms of the Claimant attending the meeting unaccompanied.
What does this mean for you or your business?
Where an employee requests to be accompanied to a disciplinary meeting by an individual outside of their contractual or statutory entitlement, employers should take time to consider the reasons for the request and the impact of refusing the request could have on the perceived fairness of such a process. Careful consideration should be given to the individual circumstances especially when dealing with issues regarding a potential disability, an individual that may not be able to follow a meeting with ease (i.e. if English is not their first language) or an individual for which the outcome of the disciplinary would have a significant impact on their career.
What do you need to be doing now?
Employers should provide guidance and training to managers likely to be undertaking disciplinary and grievance meetings. They should be trained on when it is appropriate to exercise discretion and the types of consideration that should be taken where such a request arises and how to respond. Also mangers should be aware of the ACAS non-statutory guidance which was revised this year.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.