Investigatory Meetings and the Right to be accompanied

The ACAS Code of Practice onDisciplinary and Grievance Procedures (the ACAS Code) issupplemented by a non-statutory guide, Discipline and grievances atwork: The ACAS guide which gives further guidance on bestpractice.

The ACAS Code sets out thesteps that an employer should follow when investigating adisciplinary issue and thereafter, conducting a disciplinaryhearing.

The ACAS Code only applies todisciplinary situations including misconduct and poor performancebut excludes dismissals on grounds of redundancy or the non-renewalof a fixed term contract.

The importance of the ACASCode is that it is intended to help employers and employees dealeffectively with allegations of misconduct or poor performance atwork.

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

Entrenched in the ACAS Code isthe requirement for an employer to carry out a reasonableinvestigation. This may involve investigatory meetings withthe employee under investigation or alternatively, may involvecollating evidence.

It is important to note thatno investigatory meeting should result in a disciplinary sanctionitself without a disciplinary hearing.

The amount of an investigationwill vary depending upon the circumstances of thecase.

There is sometimes confusionas to whether or not employees have a statutory right to beaccompanied at an investigatory meeting. In accordance withthe ACAS Code there is no statutory right for an employee to beaccompanied at an investigatory meeting although, a contractualdisciplinary procedure may state otherwise.

Employer's should however,consider whether a reasonable adjustment should be made forexample, in the case of a disabled employee, to allow an individualto be accompanied at an investigatory meeting particularly wherethe premises or working practices are such that puts a disabledperson at a substantial disadvantage to others. Suchadjustments could include allowing a meeting to take place awayfrom the workplace and therefore, avoid any difficult physicalfactors or alternatively, allowing an individual to be accompaniedif the presence of a companion would help overcome a substantialdisadvantage caused by the disability. Further examples wouldinclude allowing an individual with a learning difficulty or speechimpediment to be accompanied by a family member or friend. Equally, this may be the case where an employee has suffered fromlong term depression or a mental health issue.

These principles are enshrinedin the recent case of Stevens v The University of Birmingham2015. Here, the High Court held that the University's refusalto allow a representative of a professional defence organisation toaccompany an employee at an investigation meeting concerningserious allegations of misconduct was unfair and a breach of theimplied term of trust and confidence. The High Court likenedthe situation to that of dealing with a disabled employee and saidthat, in some circumstances, an employer had to adopt a flexibleapproach when applying express contractual terms in order topromote procedural fairness and avoid a breach of the implied termof trust and confidence.

In this case, the contractualdisciplinary procedure gave the employee the right to beaccompanied to an investigation hearing but only by a Trade Unionmember or member of staff. Mr Stevens was subject tocontracts of employment in both an academic role with theUniversity and a clinical role with the NHS Foundation. Thealleged misconduct related to the conduct of clinical trials whichwas governed by both contracts.

Under the Trust's disciplinaryprocedure the employee would have been entitled to his choice ofcompanion, namely a representative of the Professional DefenceOrganisation had it initiated disciplinary proceedings rather thanthe University. Mr Stevens of course had no control overwhich organisation chose to take the lead in the proceedings and infact, strict adherence to the University's disciplinary procedurewould have denied him the opportunity to be accompanied atall.

The High Court ruled thatthere was an overriding obligation of trust and confidence and thatrefusal to allow the employee his choice of companion in theinvestigation process was a breach of the implied term of trust andconfidence.

The Court noted that theinvestigation was a critical stage of the disciplinary proceedingsand that in this case, given that the allegations were serious anyresulting disciplinary action could have been career ending. The University had allowed the investigating officer external andtechnical support but was denying the employee any support at allwhich created what the High Court described as a perception of "aninequality of arms".

It was also taken into accountthat witnesses had been allowed their choice of companion and weretherefore, treated more favourably than ProfessorStevens.

The decision follows thefurther case of Toal v GB Oils Limited 2013 which led to a changein the non-statutory guidance which accompanies the ACASCode. The amendment made it clear that employers can allowworkers to be accompanied by a companion who are not Trade Unionrepresentatives or work colleagues.

In the case of Toal theTribunal considered whether an employee's choice of companion hadto be "reasonable" within the meaning of Section 10 (1) (b) ERA1999. The Employment Tribunal found that it did not, and thatthe requirement of reasonableness related only to the request foraccompaniment and not to the choice ofcompanion.

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.