Investigatory Meetings and the Right to be accompanied

The ACAS Code of Practice on Disciplinary and Grievance Procedures (the ACAS Code) is supplemented by a non-statutory guide, Discipline and grievances at work:  The ACAS guide which gives further guidance on best practice. 

The ACAS Code sets out the steps that an employer should follow when investigating a disciplinary issue and thereafter, conducting a disciplinary hearing. 

The ACAS Code only applies to disciplinary situations including misconduct and poor performance but excludes dismissals on grounds of redundancy or the non-renewal of a fixed term contract.

The importance of the ACAS Code is that it is intended to help employers and employees deal effectively with allegations of misconduct or poor performance at work. 

In the Employment Tribunal when deciding whether an employee has been unfairly dismissed for misconduct or poor performance, a Tribunal will consider whether the employer has followed a fair procedure and in doing so, will take into account the provisions of the ACAS Code. 

Entrenched in the ACAS Code is the requirement for an employer to carry out a reasonable investigation.  This may involve investigatory meetings with the employee under investigation or alternatively, may involve collating evidence. 

It is important to note that no investigatory meeting should result in a disciplinary sanction itself without a disciplinary hearing.

The amount of an investigation will vary depending upon the circumstances of the case. 

There is sometimes confusion as to whether or not employees have a statutory right to be accompanied at an investigatory meeting.  In accordance with the ACAS Code there is no statutory right for an employee to be accompanied at an investigatory meeting although, a contractual disciplinary procedure may state otherwise. 

Employer's should however, consider whether a reasonable adjustment should be made for example, in the case of a disabled employee, to allow an individual to be accompanied at an investigatory meeting particularly where the premises or working practices are such that puts a disabled person at a substantial disadvantage to others.  Such adjustments could include allowing a meeting to take place away from the workplace and therefore, avoid any difficult physical factors or alternatively, allowing an individual to be accompanied if the presence of a companion would help overcome a substantial disadvantage caused by the disability.  Further examples would include allowing an individual with a learning difficulty or speech impediment to be accompanied by a family member or friend.  Equally, this may be the case where an employee has suffered from long term depression or a mental health issue.

These principles are enshrined in the recent case of Stevens v The University of Birmingham 2015.  Here, the High Court held that the University's refusal to allow a representative of a professional defence organisation to accompany an employee at an investigation meeting concerning serious allegations of misconduct was unfair and a breach of the implied term of trust and confidence.  The High Court likened the situation to that of dealing with a disabled employee and said that, in some circumstances, an employer had to adopt a flexible approach when applying express contractual terms in order to promote procedural fairness and avoid a breach of the implied term of trust and confidence.

In this case, the contractual disciplinary procedure gave the employee the right to be accompanied to an investigation hearing but only by a Trade Union member or member of staff.  Mr Stevens was subject to contracts of employment in both an academic role with the University and a clinical role with the NHS Foundation.  The alleged misconduct related to the conduct of clinical trials which was governed by both contracts.

Under the Trust's disciplinary procedure the employee would have been entitled to his choice of companion, namely a representative of the Professional Defence Organisation had it initiated disciplinary proceedings rather than the University.  Mr Stevens of course had no control over which organisation chose to take the lead in the proceedings and in fact, strict adherence to the University's disciplinary procedure would have denied him the opportunity to be accompanied at all.

The High Court ruled that there was an overriding obligation of trust and confidence and that refusal to allow the employee his choice of companion in the investigation process was a breach of the implied term of trust and confidence.

The Court noted that the investigation was a critical stage of the disciplinary proceedings and that in this case, given that the allegations were serious any resulting disciplinary action could have been career ending.  The University had allowed the investigating officer external and technical support but was denying the employee any support at all which created what the High Court described as a perception of "an inequality of arms". 

It was also taken into account that witnesses had been allowed their choice of companion and were therefore, treated more favourably than Professor Stevens.

The decision follows the further case of Toal v GB Oils Limited 2013 which led to a change in the non-statutory guidance which accompanies the ACAS Code.  The amendment made it clear that employers can allow workers to be accompanied by a companion who are not Trade Union representatives or work colleagues. 

In the case of Toal the Tribunal considered whether an employee's choice of companion had to be "reasonable" within the meaning of Section 10 (1) (b) ERA 1999.  The Employment Tribunal found that it did not, and that the requirement of reasonableness related only to the request for accompaniment and not to the choice of companion.  

Posted on: 24/08/2015

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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