The right to be accompanied - a warning to employers
The Employment Appeal Tribunal (EAT) has held that an employer’s refusal to allow one of its employees to be accompanied to a disciplinary hearing was a breach of trust and confidence, following which the Claimant was entitled to resign and claim constructive dismissal.
Section 10 of the Employment Relations Act 1999 (EReA) permits an employee to be accompanied to a disciplinary or grievance hearing by a companion of their choice. This can be either a trade union official or another of the employer’s workers.
In Leeds Dental Team Limited v Rose, the Claimant, a Practice Manager, was called to a disciplinary hearing by the Leeds Dental Team Limited (the Practice) for failing to record sickness absence correctly.
The Claimant requested to be accompanied by the former owner of the Practice, Mr Temple. Mr Temple was still continuing to act as principal dentist in the Practice’s operation, albeit in what appears to have been a self-employed capacity (so was not a fellow “worker” for the purposes of the legislation).
The Practice refused to allow Mr Temple to be the Claimant’s companion as it believed that Mr Temple would be “supportive” of the Claimant’s position.
The hearing was not concluded and the Claimant went off sick shortly afterwards and did not return. She subsequently resigned, claiming that the Practice’s conduct had breached the mutual duty of trust and confidence.
Amongst a number of other failings in the disciplinary process, the EAT held that the Practice was unreasonable in refusing to allow the Claimant’s request to be accompanied by Mr Temple.
A companion is allowed to address the hearing in order to put the worker’s case forward, sum up the worker’s case or respond on the worker’s behalf to any view expressed at the hearing. The Practice had misconstrued the duty of Mr Temple as the Claimant’s companion.
It is irrelevant whether Mr Temple “supported” the Claimant’s position, providing that he would not have prejudiced the hearing in any way (which the EAT held he did not).
In May last year, the case of Toal v GB Oils held that a worker’s choice of companion need not be reasonable, provided it fell within Section 10 as set out above. The EAT’s liberal approach in the present case arguably widens the scope even further, as Mr Temple was arguably not a fellow “worker” of the Claimant.
The string of cases in this area should serve as a stark warning to employers that, unless they consider a companion would prejudice the proper conduct of a hearing, raising objections to an employer’s choice of companion is likely to breach trust and confidence which could result in a costly claim for constructive dismissal.
Circumstances where it may be reasonable to refuse a choice of companion may be, for example, where the companion is a “co-defendant” in a disciplinary process.