Such was the question before the High Court in Stevens v University of Birmingham.
Employees have a right under s.10 Employment Relations Act 1999 to be accompanied to both disciplinary and grievance hearings by a work colleague or a trade union representative. (Note – in these circumstances a disciplinary hearing also includes situations where the employee’s capability to do their job is in question.) Frequently, however, employees will ask if they are allowed to have a companion at such a hearing who does not meet the above criteria.
Whilst there is no statutory requirement to allow such companions to attend, employers may grant a request if it seems reasonable to do so. For example, an employee may be disabled and might want a support worker to attend with them. Similarly, requests are sometimes made where the employee has race/language issues that might be avoided by having an ‘external’ companion. Employers are sometimes more flexible when it comes to these types of requests.
On the other hand an employee may not be a member of the trade union or might not wish to disclose what is happening to a work colleague. In these circumstances, employers are often less understanding than in disability/race cases.
Employers are within their rights to refuse requests of employees to be accompanied by someone who is not a work colleague or trade union representative, and it is often regarded as being of low risk to the employer to do so.
The recent case of Stevens v University of Birmingham was somewhat different. In this case, the employee (Professor Stevens) was a senior academic at the University. Allegations were made in relation to a number of clinical trials in which he had been involved. He was neither a member of a union and nor did he have any suitable colleagues at the University who could act as his companion. He requested that a member of the Medical Protection Service (a leading medical defence organisation) should be his companion at the disciplinary hearing. The MPS were not a trade union, and Professor Stevens’ request was denied. He sought a declaration from the Queens Bench Division of the High Court that he was entitled to have a representative from MPS present at his disciplinary hearing.
Giving judgment in favour of Professor Stevens, Mrs Justice Andrews found the duty of trust and confidence that is implied into every contract of employment required the University to allow a representative from MPS at the disciplinary hearing. Crucial factors which appear to have influenced the learned Judge appear to be the fact that the MPS representative had been allowed to represent the employee at all stages prior to the disciplinary hearing, the MPS had a function very similar to that of a union, and the employee had several interconnected contracts of employment with differing rights under each.
Whilst the decision was highly fact specific, this case highlights the importance of employers giving reasonable consideration to any request for a companion at a hearing who is neither a work colleague nor trade union official.
If you have any questions about this or any other legal matter, please get in touch with a member of our Employment Law team.