Employment Dispute ; employers must not unreasonably refuse to allow an employee to be accompanied to an internal disciplinary hearing with a companion of their choice
The Employment Relations Order (NI) 1999 introduced the right for employees and workers to be accompanied by a fellow worker or appropriately trained trade union official at disciplinary and grievance meetings.
However there has been considerable case law recently on what this right covers and to whom it applies to.
A recent decision in the Employment Appeal Tribunal in GB considered this in the context of a constructive dismissal case. Leeds Dental Team Limited employed Mrs Rose as a Practice Manager. She had been previously employed by Mr Temple, a Dentist, however he had sold his practice to Leeds Dental Team Limited. In January 2011 the Claimant, Mrs Rose, was suspended and invited to attend a disciplinary hearing in relation to an alleged breach of company rules and procedures in respect of one particular colleague as regards sick pay, overtime, breach of overtime scheme, breach of protocol regarding unauthorised absence. It had come to the employer’s attention that Mrs Rose had not been recording Ms Keane sickness absence; indeed two other members of staff had previously complained that the Claimant was showing favouritism to Ms Keane.
The employee requested that Mr Temple be her companion at the disciplinary hearing but this was refused and the hearing scheduled for 31 January 2011 resulted in some disarray as Mr Temple sought to enter the room in which the hearing was taking place.The hearing was never resumed after the abortive hearing and the Claimant was told that if she did not attend a rearranged hearing she would not be paid. Shortly thereafter, the Claimant went off sick and did not return, but resigned by letter. She brought proceedings for constructive dismissal.
The Tribunal stated that it was the part of the role of the person who accompanied an individual to a disciplinary hearing to put the individual's case to the employer and respond on the employee’s behalf to views expressed at the meeting. The Tribunal found that the employer had based the refusal to allow Mr Temple to accompany Mrs Rose on an erroneous view of the scope of the companion’s role. The Tribunal found that there were no grounds for believing that Mr Temple’s presence would prejudice the proper conduct of the disciplinary hearing. Therefore the Tribunal found that the company’s refusal to allow Mrs Rose to be accompanied by Mr Temple at the disciplinary hearing contributed to a breach of trust and confidence, leaving Mrs Rose having to attend a disciplinary hearing on her own and under duress. The Tribunal also stated that it accepted that an employer is entitled to require an employee to attend work and to refuse to pay them if they failed to do so without good reason. Nevertheless, the Tribunal considered it disproportionate for an employer to threaten not to pay an employee if they have indicated that they will not attend a disciplinary hearing when their employer has refused unreasonably to allow them to be accompanied at a meeting by a companion of their choice, as was the case here.
The Employment Appeal Tribunal agreed with the Tribunal at first instance and refused the appeal of the employer.
This case is a stark warning to employers on the issue of the right to be accompanied and the unreasonableness of preventing an employee being accompanied by their choice of companion. On the particular facts of this case, the Tribunal held the actions of the employer amounted to a fundamental breach of the contract of employment.The Claimant in this case was awarded £9,205.35.
Employers should always seek professional legal advice prior to taking any disciplinary action to avoid expensive and time consuming litigation.
Maxine Orr is a Partner specialising in employment law at Worthingtons Solicitors.