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Two is, as they say, company...

Section 10 of the Employment Relations Act 1999 permits an employee to be accompanied to a disciplinary or grievance hearing by a companion of their choice (as long as their ‘choice’ is between a trade union official or co-worker – goodness forbid it be a lawyer!!).

One can be forgiven for taking the view that such a fundamental right (one of natural justice, perhaps) would be cemented into law with fierce penalties for withholding such a right. Think again! Until recently a mere 2 week’s pay (limited to £900) was the ‘penalty’ for refusing companionship.

Enter the EAT in Leeds Dental Team Limited v Rose - when taken together with other failings in the disciplinary process, failing to accord the right of accompaniment can constitute a breach of trust and confidence which would allow an employee to resign and claim constructive dismissal.

The Facts

The claimant, a Practice Manager was called to a disciplinary hearing by her employer for alleged failure to accurately record sickness absences. The claimant asked to be accompanied by the former owner of the employer’s business, Mr Temple, who continued to work in the practice in a self-employed capacity – causing the employer to refuse Mr Temple as a companion.

The disciplinary hearing was not concluded and the claimant took sick leave and subsequently resigned claiming her employer had breached the mutual duty of trust and confidence and cited various reasons ranging from a lack of investigation, her unblemished record as well as the refusal of her companion choice.

In finding for the claimant, the EAT held that taking the facts together with the employer‘s unreasonable management of the disciplinary hearings and refusal to allow the claimant’s request to be accompanied amounted to a repudiatory breach (mutual trust and confidence) of her contract of employment which entitled her to resign.

Practical Points

Is The View surprised by this judgement? ... No! This case does not say that refusal of accompaniment (carrying as it does the breath-taking penalty alluded to above) alone is sufficient to constitute a breach of trust and confidence  It merely augments what The View would already have suggested is the appropriate stance i.e. that a refusal of may (not will) be taken as one factor pointing to such a breach.

What this case does tells us is that a reasonable request for accompaniment may, if all the circumstances are taken into account, go beyond a co-worker or trade union rep and, who knows, it might even encompass a lawyer (but The View wouldn’t bet on it!!)

For further information or assistance, please contact a member of the Spencer Wyatt team on 020 7925 8080.


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