Breach of Trust and Confidence?

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Employers may need to tread carefully before out rightly rejecting an employee’s companion requests.

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In the recent case of Stevens v University of Birmingham the claimant was seeking a declaration that he was entitled to be accompanied at an investigatory meeting by a person who did not meet the criteria which was stipulated by the University’s code of conduct.

Stevens was suspended from his research duties and the matters that led to the suspension were subject of an internal investigation.

Section 10 of the employment Relations Act 1999 sets out the rights for workers and employees to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing. This does not apply to investigatory meetings.

The University said that the claimant could only be accompanied at the investigation meeting by a trade union representative or an employee of the University. Stevens explained that he had no friends who were employees of the University who would be suitable to accompany him to the meeting and he was not a member of a trade union (this is a common misconception; you do not have to be a member of a trade union to obtain assistance from them). Stevens requested to be accompanied by a professional defence organisation who did not satisfy the criteria. Stevens relayed if he would be compelled to attend the meeting unaccompanied it would be unfair. The University refused the request stating that there was a concern that allowing the request would be outside the terms of the contract of employment. The court had to decide whether Stevens did or did not have a contractual entitlement to be accompanied by his choice of person, and whether the University’s refusal to his request in the circumstances was a breach of the overriding contractual obligation of trust and confidence.

The court decided in the claimant’s favour. On the facts of this particular case, it would be unfair for the University to insist on adherence to the terms as this would be considered to be a breach of the implied contractual term that the employer should do nothing to seriously damage the relationship of mutual trust and confidence without good and sufficient reason. Employers may therefore need to tread carefully before out rightly rejecting an employee’s companion requests.

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