Running any internal procedures could be very stressful for all parties involved, be it for investigation, disciplinary, grievance, sickness absence or performance management purposes. Even if the employer has solid evidence and good reason for subjecting employees to a formal procedure, employees can feel targeted and suspicious of perceived ulterior motives of the employer. A common issue and cause of friction is the employee’s right to be accompanied at formal meetings. Rather unhelpfully the Acas Code of Practice on Disciplinary and Grievance Procedures states that employees should be accompanied by a fellow employee or a trade union representative, but it does not specifically state “and nobody else”. This means that the employee could request to be accompanied by a family member, employment solicitor or even David Beckham himself if the employee in question was so inclined. In light of the recent decision in Stevens v University of Birmingham, employers should exercise caution when rejecting a proposed accompanied person. It follows that being accompanied by David may not be reasonable in the circumstances but having your employment solicitor there may be.
In Stevens, the Claimant was advised that he had the right to be accompanied at an investigation meeting by a trade union representative or an employee of the university. However, the Claimant was not a member of a trade union, and had no friends at the university who would be suitable to accompany him to the meeting.
The Claimant was a member of the Medical Protection Society (MPS) and requested to be accompanied to the meeting by Dr Palmer, an MPS representative who had been supporting him since the very initial investigations in 2013. The university refused the Claimant’s request on the basis that he was only allowed under the terms of his employment contract to bring an employee of the university or a member of a trade union.
The High Court held that it would be potentially unfair not to allow Dr Palmer to attend the meeting. This decision was reached due to the seriousness of the allegations, the fact that MPS served a similar function to a trade union, and the fact the Claimant has been assisted by Dr Palmer since 2013. The High Court ruled that in the provided circumstances, the university’s refusal to allow the Claimant to be accompanied by Dr Palmer constituted breach of the implied and overarching contractual term of “trust and confidence” that governed the relationship between the university and the Claimant. A declaration was made giving the Claimant permission to be accompanied by a person of his choice.