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The Right to Be Accompanied and Constructive Dismissal

4 October 2013: Under the s10 Employment Relations Act 1999 employees have the right to be accompanied by a colleague or trade union rep at disciplinary or grievance meetings. The companion can put forward the employee’s case, sum up the case, and confer. See our web page for more detail.

 

What happens though if you refuse to allow someone to be accompanied, other than the section 11 right to two weeks pay?

 

In the recent case of the Leeds Dental Team Ltd v Rose in the EAT, Mrs Rose was the practice manager. She was disciplined for not recording someone’s sickness absence. She was denied her chosen colleague at the disciplinary hearing, which ended in disarray after he tried to join it.

 

Mrs Rose  was told that if she did not attend a rearranged hearing she would not be paid. She went off sick then resigned by letter claiming constructive dismissal. The Tribunal held that the refusal to allow Mrs Rose to be accompanied at the disciplinary hearing was unreasonable, breaching her trust and confidence in them. She then had to attend the hearing on her own and under duress.

 

The EAT confirmed that a failure to allow her to be accompanied at a disciplinary hearing did contribute to breakdown of trust and confidence, underlying constructive dismissal. It was not necessary to establish whether the employer had a subjective intention to act in such a way as to permit the employee to terminate the contract.

 

If employers wish to disagree with the chosen companion it would be wise to be careful and take advice.

James Carmody. Reculver Solicitor and Lawyers. Central London, Holborn WC1

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