A request to be accompanied - when can an employer reject a worker's choice of companion?

The statutory right for a worker to be accompanied on its face seems straightforward – in essence it provides that a worker can make a reasonable request to be accompanied by a trade union representative or a fellow worker at disciplinary and grievance hearing. This right is further explained in the ACAS Code of Practice on Disciplinary and Grievance Procedures (the “ACAS Code”) (see here), supported by ACAS guidance (see here). However, whilst many requests for a companion do fall within this box, others do not. Where a worker is disabled, agreeing to “an out of the box” request may be a reasonable adjustment. In other cases it is always open for an employer to exercise its discretion and agree to it, provided it remains alive to the risk of setting a precedent.

A recent High Court decision has however thrown the spotlight on how a request to be accompanied interacts with the implied duty an employer owes of trust and confidence – the employee here alleging breach of that term when his request for a particular companion to attend an investigatory meeting was rejected – yet the employee did not resign in light of that alleged breach, instead remaining in employment to clear his name. The case also highlights what may become an increasing issue for businesses where as more technology enables an employer’s workforce to become more remote – is a worker in a position where they will in fact be able to identify a companion in accordance with their statutory right?

What was in issue?

Professor Stevens was employed by Birmingham University as their Chair of Medicine. It was a requirement of that post that he also be engaged by the Heart of England NHS Foundation Trust (“HEFT”). In respect of some clinical trials Professor Stevens carried out as part of his role, allegations of misconduct were reported to the regulator and following an initial investigation by the University, he was suspended. He was subsequently invited to an investigatory meeting and informed that he could be accompanied by either a trade union representative or a fellow university employee. Whilst Professor Stevens was not a member of a trade union, he was a member of a medical defence organisation, the Medical Protection Society (“MPS”). As a result he argued that he had a right to be represented by a MPS representative (who was neither an employee nor a trade union official). The University, who was taking the lead in the disciplinary process, refused this request (despite the fact that had HEFT been leading the process, his request would have been permitted under the terms of their policy). Professor Stevens brought a claim in the High Court who agreed that that the University’s actions in rejecting his request had the effect of severely damaging the relationship of trust and confidence between the University and Professor Stevens and issued a declaration to that effect.

What does this mean for employers?

From our experience, requests to be accompanied which do not sit squarely within the statutory or any contractual rules on the right to be accompanied are typically dealt with by employers on an individual basis, assessing the particular circumstances involved bearing in mind any potential issues of discrimination and the need, as the case may be to preserve time, goodwill and cooperation. Indeed, this is an approach supported by the ACAS Guidance referred to above. In most cases, provided employers have carefully considered the particular circumstances, they should still feel relatively comfortable in ultimately rejecting a request which falls outside the statutory obligations or the businesses own policy and where there are not other issues in play such as potential discrimination. The High Court’s decision here however emphasises the need for that careful assessment and whilst each case will raise its own particular issues, the facts in Stevens demonstrate that particular care may be needed where:

• The consequences of the relevant investigation are particularly significant for the employee – in Stevens it was recognised that the allegations could have serious ramifications for the Professor, both personal and professional.
• The requested companion possesses knowledge and experience that is not too dissimilar from that performed by a colleague or a trade union representative.
• The pool of eligible individuals that fall within the statutory categories is insufficient or non-existent, for example very senior mobile workers who have very little contact with their colleagues and may not be members of a trade union.
• There is unequal treatment with other participants – in Stevens, both the investigatory officer and witnesses were allowed to be accompanied by individuals that fell outside of the strict statutory categories.
• There are unusual or complex contractual arrangements – and in particular, as in this case, if there are conflicting provisions with two relevant employers relating to the permissible categories of companions.

It will be interesting to also see whether in light of this decision those employees for whom the outcome of the disciplinary process could be particularly devastating and whose request for a particular companion is rejected, will raise the stakes by arguing that this rejection breach of the implied term of trust and confidence, but without taking the risk of accepting it by resigning and having to then prove constructive dismissal. Whether another court would be prepared to follow the High Court in this case – issuing a declaration that there had been a breach of trust and confidence despite the fact the employee had not accepted it by resigning remains to be seen.

If you have any queries in respect of the issues raised above, please do not hesitate to contact your usual OC Contact.