The High Court has recently held in the case of Stevens -v- University of Birmingham  that the University’s refusal to allow a representative from a professional defence organisation to accompany the employee at an investigation meeting concerning serious allegations of misconduct was unfair and in breach of the implied trust and confidence. Although the express terms of the relevant contractual disciplinary procedure allowed the usual statutory rights to a companion set out in Section 10 of the Employment Rights Act 1999, the Court held that these terms were modified by the overriding obligation of trust and confidence.
This would, on the face of it, seem like a ground-breaking decision which may have huge implications for many employers across the UK. However, in this case there was a factual difference which would differentiate most employees in the ordinary course of employment. The Claimant in this case was subject to two contracts of employment, one with the University and a more clinical one with an NHS Trust. The alleged misconduct related to the clinical role, and the Claimant would have been allowed his choice of companion under the NHS Trust disciplinary procedure, had it initiated disciplinary proceedings rather than the University. However, the Claimant had no control over which organisation took the disciplinary proceedings and, therefore, strict adherence to the University disciplinary procedure denied the Claimant the opportunity to be accompanied as he wished, and it was therefore in breach of the implied term of trust and confidence.
In reality, this sort of scenario is unlikely to occur in many day to day employment situations. It does, however, heed a warning to employers that they need to be careful when considering rejection of a companion in the right to be accompanied case.