The right to be accompanied - another surprising decision

The right to be accompanied - another surprising decision

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Author: Stuart Lawrenson

Following Toal v GB Oils Limited UK (see "Workers have free choice of companions at disciplinary and grievance meetings") another case has challenged "well established principles" regarding companions, this time in the context of constructive dismissal.

The law

Under section 10 of the Employment Relations Act 1999 (ERA 1999) a worker has the statutory right to be accompanied at a disciplinary or grievance hearing by a companion of their choice who is either:

  • a paid official of a trade union;
  • an unpaid official of a trade union who is certified as competent to act as a companion; or
  • another of the employer's workers.

A constructive dismissal occurs when an employee resigns (with or without notice) in circumstances where they are entitled to do so without notice by reason of the employer's conduct. The "circumstances" required are:

  • a sufficiently serious breach of the employment contract on the part of the employer;
  • a decision by the employee to resign in response to that beach; and
  • the employee not delaying their resignation.

Case law has confirmed that a serious breach of an implied term can support a claim for a constructive dismissal. The most obvious example of this is where the employer's conduct breaches the implied term of trust and confidence.

Facts

In Leeds Dental Team Limited v Mrs D Rose Case No UKEAT/0016/13/DM the Claimant was employed as a Practice Manager in a dental surgery. The Claimant failed to record a fellow employee's sickness absence and a disciplinary process was commenced which resulted in the Claimant being invited to a disciplinary hearing. The Claimant asked to be accompanied at the hearing by the dentist who used to own the practice. The Respondent refused to allow the Claimant to be accompanied because it believed that the former owner would support the Claimant's position. The Claimant went off sick and ultimately resigned.

The Claimant issued a claim for constructive unfair dismissal, stating various actions by the Respondent, including the refusal to allow her to be accompanied by the former owner, amounted to breaches of the implied term of trust and confidence entitling her to resign. The Respondent accepted that the Claimant resigned with sufficient speed and resigned in response to the alleged breaches but denied that the alleged breaches were sufficiently serious to entitle the Claimant to resign.

In relation to the refusal to allow the Claimant to be accompanied, the Employment Tribunal found the Respondent's refusal had been unreasonable and that it contributed to a breach of trust and confidence, leaving the Claimant to have to attend the disciplinary hearing on her own and under duress. Further it found that there were no grounds for believing that the Claimant's proposed companion would have prejudiced the proper conduct of the disciplinary hearing. Having considered all of the alleged breaches the Employment Tribunal found that the Respondent had breached the implied duty to maintain trust and confidence in the way it handled the disciplinary process.

Practical implications

This case potentially widens an employee's right to be accompanied beyond the statutory entitlement as set out at section 10 of ERA 1999. Employers will need to review how they deal with requests to be accompanied by someone other than a trade union official or a work colleague. This decision however should be read in full as the breach of the implied term and the decision to uphold the claim of constructive dismissal was not made solely as a result of the employer's failure to allow the Claimant to be accompanied by the previous owner. We would query whether, if this had been only the basis of the Claimant's claim, the claim would still have been successful.

Reference

See "Workers have free choice of companions at disciplinary and grievance meetings"

About the Author

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Stuart Lawrenson

Partner

03700 86 6733

Stuart is head of the Solent employment team and advises on all aspects of employment law, both contentious and non contentious. He is an experienced Tribunal advocate where he has represented both employers and employees. Stuart prides himself in giving commercial, practical and "no-nonsense" advice and regularly deals with knotty disciplinary and grievance issues, executive appointment & exits and discrimination and equal pay. On a more strategic level he has much experience advising on redundancy & reorganisation and providing TUPE advice.

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