UK: Employers may need to allow wider choice of companion in disciplinary process

It may be a breach of trust and confidence in some cases for an employer to deny an employee the right to be accompanied to a disciplinary investigation or hearing by someone other than a union official or colleague.

Employees have a statutory right to be accompanied to a disciplinary hearing only by a union official or a work colleague. However, the right may be extended to broader categories of companion and/or to investigatory meetings if the contract so provides, if it could be a reasonable adjustment for disability, or if the duty of trust and confidence so requires.

In this case the Court ruled that the duty of trust and confidence did require the employer to permit a different type of companion at an investigation into misconduct where:

• there was no suitable individual within the two statutory categories,
• the employee was potentially facing serious allegations (of misconduct in clinical trials) which could jeopardise his career,
• a companion able to offer technical expertise was essential to provide the employee with as much assistance at possible at this critical investigatory stage,
• the employer had allowed the investigating officer external and technical support, and had given witnesses a free choice of companion, and
• the employee's work was performed under two contracts, one with the university and one with the NHS Trust, and the allegations could have been investigated under either the university's or the NHS Trust's disciplinary procedures; the latter provided for a wider choice of companion, but it was the university which happened to initiate the investigation.

In these circumstances, the university's refusal to allow the employee to be accompanied to the investigation meeting by a Medical Protection Society representative, who was a technical expert and had been assisting him up to that point, was a breach of trust and confidence.

The case should not be read as extending the right to a companion generally, but does serve as a warning to employers to carefully consider any requests for a companion outside the statutory categories. This will be particularly relevant where the allegations are serious and involve technical issues where expert assistance is required, and where such assistance has been given to other witnesses or the investigating officer. (Stevens v University of Birmingham)