The High Court has decided that a failure to allow an employee to be accompanied by a representative of his choice, even though the employer complied with the statutory minimum requirements, was a breach of the duty of trust and confidence.
What has happened?
In this case, Dr Stevens was an academic at Birmingham University. He faced disciplinary allegations regarding his conduct in connection with some clinical trials into diabetes.
Dr Stevens was permitted under his contract of employment to representation at the disciplinary hearing by a trade union or work colleague. This complies with the legal requirements under section 10 of the Employment Relations Act 1999.
However, Dr Stevens was not a member of a trade union and could not find a suitable work colleague to accompany him. He wanted to use a Dr Palmer as his representative, who was employed by the Medical Protection Society who had been advising him since the allegations had first been made.
The university refused, Dr Stevens therefore applied to the High Court for a declaration this was a breach of the implied duty of trust and confidence that underpins every contract of employment.
What did the court say?
Dr Stevens succeeded. The High Court decided, given the seriousness of the charges and the inequality of bargaining power and that the fact the Medical Protection Society performed functions similar to a union he was entitled to the declaration.
What does this mean for employers?
This ruling does not mean that an employee can come to a hearing with a solicitor but it may mean that they could choose, for example, an experienced HR consultant if the employee is not a member of a union and cannot find a suitable work colleague, especially if dismissal is a realistic possibility if an allegation is proven.
Of more concern is that a breach of the duty of trust and confidence entitles the employee to resign and claim constructive dismissal. Employers now would be wise to consider very carefully requests made by employees for people to accompany them who fall outside the statutory requirements.
This article has been drafted on HR Legal Service’s behalf by Ward Hadaway Law Firm. Ward Hadaway Law Firm is one of HR Legal Service’s strategic legal advisory partners and provides certain services to our customers through a range of different Legal and HR support services offered by ourselves to the corporate market.
The content of this article does not constitute legal advice and it should not be relied upon. Specific legal advice may be required to address your specific circumstance.