Helpful guidance has been provided in the recent case of Eleftheriou and another v Arriva London North Ltd ET/3200593/2014 & ET/3200200/2015 in relation to employee rights to be accompanied at disciplinary meetings.
Eleftheriou and another v Arriva London North Ltd
Background
Currently there is no general right to legal representation at disciplinary hearings. However, under section 10 Employment Relations Act 1999 (the Act), employees are entitled to be accompanied at disciplinary hearings by a colleague or a trade union representative of their choice, provided that a reasonable request for accompaniment is made and the companion satisfies the criteria in section 10(3) of the Act (the companion is employed by a trade union or another employee of the company).
Alternatively an employee may have a contractual right to be legally represented at a hearing, but this is extremely rare.
The Act does not provide any guidance on what will and will not be a reasonable request. However, Toal and another v GB Oils Ltd EAT/0569/13 made it clear that employees had an absolute right to choose their companion, employers should not concern themselves with the suitability of the choice of companion and that a request cannot be dismissed as unreasonable solely due to the employee’s choice of companion.
Case Facts
The case concerned two bus drivers, Mr Eleftheriou and Mr Bowani. Both drivers requested the accompaniment of Mr McConville, an accredited trade union representative, as their companion at disciplinary hearings.
Both requests for accompaniment were refused on the grounds of Mr McConville’s behaviour at previous hearings, which had been held to be ‘unreasonable’ by management. This unreasonable behaviour included talking over others during hearings.
The two hearings went ahead without representation, Mr Eleftheriou receiving two cautions and Mr Bowani being dismissed. The two employees later claimed that their right to accompaniment had been breached as a result of their employer’s refusal to allow a trade union representative to act as a companion.
Decision
The employment tribunal found in favour of the two employees, holding that in the circumstances the employees’ right to be accompanied had indeed been breached.
The employment tribunal ruled that as long as the choice of accompaniment made by an employee is a trade union representative or fellow worker, an employer cannot veto an employee’s choice of individual, even if the employer personally considers the choice to be unsuitable.
The two bus drivers were awarded the equivalent of two weeks’ wages. This is the maximum amount of compensation that can be ordered to be paid in line with section 11(3) of the Act. Currently the statutory limit on a gross week’s pay is £475.
Comment
This case follows a string of other cases regarding the right to be accompanied. In Stevens v University of Birmingham [2015] EWHC 2300, the High Court ruled that the refusal by the employer to allow the employee’s choice of companion at an investigation meeting was a breach of the implied term of mutual trust and confidence, even though the companion requested was a member of a professional defence organisation and did not satisfy the statutory criteria in section 10(3) of the Act and the meeting was an investigatory meeting and not a disciplinary meeting to which the Act normally applies.
The implied term of mutual trust and confidence means that an employer cannot without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of mutual trust and confidence between itself and the employee.
Professor Stevens was a clinical academic, holding the position of Chair of Medicine for a significant period of time. In reaching their decision, the High Court emphasised the fact that the role of the companion was to provide support to the employee subject to the disciplinary procedure, and not to be an advocate, and therefore it was vital that the companion had some technical knowledge of the issues involved. Without this, the companion can be of no meaningful assistance.
In Rose v The Leeds Dental Team Ltd [2014] IRLR 8, the Tribunal also held that refusal of an employee’s choice of companion may give rise to a finding of breach of mutual trust and confidence.
In this case the employee was practice manager of the dental practice and had not been recording the absence of one of the dental nurses. The employee was subjected to disciplinary proceedings and made a request to be accompanied. The request was refused and the employee refused to attend the disciplinary hearing.
The tribunal held that the subjective intention of the employer was irrelevant in establishing whether the implied term had been breached, and that the refusal of companion was unreasonable despite the requested companion not falling within the statutory criteria. Consequently, a finding of breach of the implied duty of trust and confidence was made.
These cases are a reminder to employers that careful consideration of the facts and the overall fairness of the procedure must be made before an employee’s choice of companion is refused and that, in certain circumstances, employee’s will have a valid claim in spite of the fact that their chosen companion does not fit the statutory criteria.
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