Monday, 3 July 2017

Companions at disciplinary hearings: difficult scenarios for HR

On paper, a worker’s right to be accompanied at a disciplinary hearing is one of the simplest employment rights there is. In practice, the right to be accompanied can be a divisive magnet for dispute, as these seven example scenarios for HR show.
 

1. Performance review meeting with underperforming probationer

The scenario
A line manager has an employee who is underperforming during probation.
The manager intends to tell the employee at the meeting that he will be dismissed if his performance does not improve within the next month.
At the start of the meeting, the employee insists that he has union representation at the meeting, so HR is called in.
What’s the legal position?
The employee is correct and the line manager is mistaken if he believes that he does not have to follow a set procedure because the employee is on probation. The right to be accompanied is a day-one employment right.
A meeting attracts the right to be accompanied if the meeting could result in:
  • a formal warning being issued;
  • the taking of any other disciplinary action (for example, demotion or dismissal); or
  • the confirmation of a warning or some other disciplinary sanction (ie appeal hearings).
Key case
In Collins v ILC Manchester Ltd t/a International Learning College, the employer lost at employment tribunal because it did not allow an employee who was still on his probationary period to be accompanied at a meeting at which he was informed that he was being dismissed.
 

2. Request to be accompanied at investigatory meeting

The scenario
A doctor is accused of negligence. As the case involves complicated medical data, the doctor asks to be accompanied at investigatory meetings by a colleague who is not otherwise involved in the case.
The HR department is unsure whether or not to allow the doctor be accompanied at the investigatory meetings.
What’s the legal position?
It is very important for the HR department to double-check that the doctor does not have a contractual right to be accompanied at investigation meetings.
Assuming that he does not have anything in his contract of employment, strictly speaking there is no legal obligation on the employer to allow the doctor to be accompanied at a disciplinary investigation.
However, the HR department must also think carefully about whether or not it is breaching the implied duty of trust and confidence.
In one case, the High Court found that an employer that was in a situation similar to this scenario was expected to go beyond the letter of the law or contractual terms to avoid breaching the implied duty of trust and confidence.
In that case, the investigation was looking into allegations that could have ended a professor’s career, and so the employer was expected to be flexible with the choice of companion.
Key case
In Stevens v University of Birmingham, the High Court held that an employer breached its implied duty of trust and confidence towards an employee who was not allowed to be accompanied at a disciplinary investigation by his choice of companion.
 

3. Request to be accompanied at hearing by former colleague

The scenario
The same doctor as in scenario 2 has his request to be accompanied by a colleague at the disciplinary investigation granted. The conclusion of the investigation is that the case should proceed to a disciplinary hearing.
The doctor wishes to have the same companion as he had at the disciplinary investigation. However, the doctor’s chosen companion is no longer working for the same NHS trust by the time of the hearing.
Does the HR department have to accede to the doctor’s request?
What’s the legal position?
Similar considerations apply here as to scenario 2.
Strictly speaking, there is no legal obligation on the employer to allow the doctor to be accompanied at a disciplinary hearing by someone who does not meet the statutory definition.
Employers are entitled to restrict the choice of companion to a trade union official or fellow worker.
However, employers should be prepared to be flexible.
The implied duty of trust and confidence may come into play again if the employee’s career in his chosen field will be at risk.
In addition, from a practical point of view it may be useful for the employer to have someone who is familiar with the allegations, particularly if the evidence is very technical.
Key case
The High Court decision in Stevens v University of Birmingham should remind the employer of the need to be flexible with the choice of companion, particularly if the allegations will put the individual’s position in his or her chosen profession at risk.
 

4. Employee wishing to be accompanied by family member

The scenario
A small company is having an ill-health capability review hearing with an employee who has been on sick leave for 18 months.

What is the role of the companion at a hearing?

Companions can:
  • confer with the employee during the hearing;
  • put the employee’s case;
  • sum up the employee’s case; and
  • respond on the employee’s behalf to any views expressed by the employer at the hearing.
Companions cannot:
  • answer questions on the employee’s behalf;
  • address the hearing if the employee indicates that he or she does not wish this to happen; or
  • use their rights in a way that prevents the employer from explaining its case or prevents any other person at the hearing from contributing to it.
The company has told the employee in the invitation that one possible outcome of the hearing will be dismissal.
The employee, who is not in a union and who does not have anyone she can ask at work to go with her, requests that a family member be present.
What’s the legal position?
A family member, or say a close friend, would clearly not meet the statutory definition of a companion so there is no obligation for the employer to agree to this.
However, in a sensitive meeting such as this, it may be beneficial for both parties to allow the employee to have some moral support.
Any subsequent employment tribunal will look favourably on an employer that allows an ill employee who is about to face the possibility of dismissal to be accompanied by a family member.
As the employee will potentially have a disability under the Equality Act, the duty to make reasonable adjustments may apply.
Giving the employee some leeway as to the choice of companion is a prime example of a reasonable adjustment.
However, whether or not to allow a family member to be present is a judgement call for the employer in each case.
The employer is quite entitled to say no if there are any indications that an outside party’s behaviour will be disruptive.
Key case
The recent Court of Appeal decision in O’Brien v Bolton St Catherine’s Academy is essential reading for any employer faced with the possibility of dismissing an employee who is on long-term sickness absence.
 

5. Request for legal representation at disciplinary hearing

The scenario
A teacher is invited to a disciplinary hearing for serious misconduct (inappropriate behaviour with a pupil) that could lead to his being unable to work in the education sector if the allegations are proven.
The teacher is concerned that an adverse finding will result in his being placed on the sexual offences register and being unable to work as a teacher. He requests to be accompanied by his lawyer at the disciplinary hearing.

Legal representation at hearings: another key case

Mattu v University Hospitals of Coventry NHS Trust
The Court of Appeal held that an NHS trust’s decision to dismiss a doctor, which made it more difficult for him to practise in his chosen profession, did not engage his right to a fair and public hearing under the European Convention on Human Rights.
What’s the legal position?
Since 2011, employers that turn down requests for legal representation at disciplinary hearings have been on safe ground in the vast majority of cases.
That was when the Supreme Court held that it was not a breach of a teaching assistant’s human rights to refuse him the right to be accompanied by a lawyer at a disciplinary hearing to address an allegation of acting inappropriately towards a pupil.
The Supreme Court stated that the school’s disciplinary proceedings did not engage the right to a fair trial under art.6 of the European Convention on Human Rights.
Article 6 does not provide an automatic right to legal representation, even where the ultimate outcome may be that the worker is essentially barred from working in a chosen field.
In this case, whether or not the teacher was barred was a matter for the safeguarding authority later on.
Although influential in that decision, a negative outcome for the teacher in the school’s disciplinary procedure did not automatically mean that the safeguarding authority would bar him.
Key case
Since the Supreme Court decision in R (on the application of G) v Governors of X School and Y City Council, employers can be confident that there is no general right for employees to be accompanied by their lawyer at a disciplinary hearing.
 

6. Employee requests postponement at last minute to find companion

Scenario
An employee is invited to a disciplinary hearing and is informed in the invitation of the right to be accompanied. However, minutes before the hearing, he requests that the meeting be postponed as he says that cannot find a companion.

Rescheduling hearings when companion unavailable

Where the chosen companion unavailable at the date or time of the hearing, the employee may propose an alternative time that is both reasonable and within five working days of the original hearing.
The employer must postpone the hearing to that alternative date and time unless it is reasonable to reject the proposal, whether because of prior commitments or because the time proposed is unsuitable.
If an employer refuses a statutory postponement as unreasonable, it should make a detailed note of the reasons why the postponed date is not reasonable and inform the employee.
The HR department suspects that this is a delaying tactic and wishes to proceed with the disciplinary hearing.
What’s the legal position?
Employment legislation requires that an employee must “reasonably request” to be accompanied at a disciplinary hearing.
It is strongly arguable that an employee who requests a last-minute delay in a disciplinary hearing to find a companion is not making a reasonable request.
As long as the employer has given the employee ample warning in advance of the right to be accompanied, the employer can go ahead with the hearing in the absence of a companion.
Key case
In Shone v Oxford and Cherwell Valley College, an employment tribunal held that it was not reasonable for an employee to put in a request to be accompanied at the disciplinary hearing just 11 minutes before it was due to start.
According to the tribunal, the request was made only as an afterthought after the employee’s earlier requests for a postponement were turned down.
 

7. Employer bars union official with history of disruptive behaviour

The scenario
An employee requests to be accompanied at her disciplinary hearing by a trade union official. However, the employer does not want this particular trade union official present at the hearing because he has previously been disruptive at hearings.
The trade union official turns up on the day of the disciplinary hearing, but is refused onto the premises by the employer.
What’s the legal position?
Following the letter of the law, the employer is in a no-win situation and is in breach of UK employment law.
According to binding EAT case law, there is no requirement for the employee’s choice of companion to be “reasonable”.
As long as the companion meets the statutory definition (ie is a trade union official or fellow worker), the choice should be left up to the employee.
However, where an employment tribunal accepts that the choice of companion is inappropriate, it has the option of reducing compensation to a nominal amount.
For example, in the recent case Gnahoua v Abellio London Ltd, the tribunal held that the employer breached the claimant’s right to be accompanied when it refused to allow his chosen companions, trade union representatives, to accompany him at a disciplinary appeal hearing.
However, the tribunal awarded the employee a measly £2, on the basis that the employer had understandable reasons for the refusal.
Key case
The leading authority for employers faced with this dilemma is Toal and another v GB Oils Ltd.
Toal clearly establishes the principle that there is an “unfettered right” for the employee to choose his or her companion, although also states that a tribunal can reduce compensation to a nominal amount if the choice is inappropriate.
My never ending gratitude must go to those nice people at Personnel Today,  for always putting together such helpful material.     see this piece in full at: