The Employment Rights Act 1999 provides workers with the right to be accompanied to any disciplinary meeting by a Trade Union representative or a colleague. There is no such a right in respect of an investigatory meeting, unless an employee's contract of employment specifically provides for it.
There has recently been an interesting decision issued on this point by the High Court in Stevens v University of Birmingham. In this case, Mr Stevens was invited to an investigatory meeting in relation to alleged wrongdoing associated with his role as chief investigator in certain clinical trials. His contract with the University allowed him to be accompanied by a Trade Union representative or fellow employee. However, Mr Stevens also had a contract with the Heart of England NHS Foundation Trust (HEFT). According to HEFT's disciplinary procedure, an employee could bring a representative of a defence organisation to an investigatory meeting.
Mr Stevens wished to have a representative from the Medical Protection Society (MPS), which he was a member of, accompany him. The University did not allow this on the grounds that the contract did not allow it. Mr Stevens argued that, if this was not allowed, he would have to attend alone as he was not a member of a Trade Union and there were no suitable colleagues to attend.
The High Court held that Mr Stevens had no express contractual right to be accompanied by a representative from MPS, on the basis that, as the University had taken the lead, the disciplinary procedure under the contract with them applied. However, the High Court found that the refusal to allow the MPS representative to attend breached the implied term of trust and confidence in the employment relationship.
This case was though very fact specific. The ultimate result of the disciplinary procedure could have been that Mr Stevens' career was brought to an end. Moreover, the individual investigating the meeting had the benefit of a technical adviser and witnesses were being given a wider right to be accompanied than Mr Stevens. Also, the reason Mr Stevens gave for no colleagues being appropriate to attend, was found to be credible. It was also relevant that had HEFT's disciplinary procedure applied, Mr Stevens would have been allowed to be accompanied by the MPS representative. Overall, the court found that the MPS representative was similar to a Trade Union representative and not allowing the former to attend the investigatory meeting had seriously damaged the relationship of trust and confidence.
While bearing in mind that this case was very unusual, employers should be aware that there could, in very limited circumstances, be a breach of the implied duty of trust in confidence in circumstances where:-
1. the issues to be discussed at an investigatory or disciplinary hearing are complex or technical and the potential consequences of an adverse decision for an employee is very serious; and
2. the employee would otherwise not be able to be accompanied if their chosen companion was not allowed to attend.