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Choice of companion at disciplinary investigation meetings

Discussion in 'Workplace dilemmas' started by GLsghost, Sep 28, 2015.

  1. GLsghost

    GLsghost Star commenter

    This topic has cropped up in discussion from time-to-time on this forum.

    A recent decision has broadened the scope of who may accompany an employee in a discrplinary hearing, though the decision should be treated with caution.

    In Stevens v University of Birmingham [2015] EWHC 2300 (QB), Mr Stevens, an academic, was the subject of allegations regarding his role as chief investigator of clinical trials of patients with diabetes. He was invited to attend a disciplinary investigation. He was not a member of a union and did not have a suitable colleague to accompany him. However, he had been assisted by Dr Palmer from the Medical Protection Society, a medical defence organisation.

    Mr Stevens requested that Dr Palmer accompany him. The university refused. Mr Stevens alleged that the refisal was a breach of the implied term of mutual trust and confidence.

    The High Court held that the university had breached the implied term of trust and confidence due to: (i) the seriousness of the allegations; (ii) the investigatory interview being a crucial stage of the process; (iii) the objectve perception of an inequality of arms in the circumstances; (iv) MPS serving a similar function to a union in the circumstances; (v) Mr Stevens having been assisted by Dr palmer to that points; and (vi) there being no-one else who could have accompanied him.

    This decision may be of assistance to those preferring to access their support from organisations from Edapt (which is not a union) or a Citizens Advice employment specialist, where the circumstances are similar. Teachers or other education workers relying on Edapt or CA have been accompanied from representatives from those organisations hitherto. However, the statute conveys no automatic right to be accompanied by anyone other than a union rep or colleague and employees have threfeore been at the whim of the employer.

    The note of caution is that this decision is from the High Court. It appears to be at odds with the Supreme Court decision in R (on the application of G) v Governors of X School and Y City Council, which held that the employee had recourse to a separate, independent body which ultimately made the decision about the fitness to continue to work in the profession. This was about the right to have legal representation; the Stevens case is about an alternative but comparable representative to a union or colleague. I do not know yet whether the decision in Stevens will be appealed - but it's certainly one to watch.
     
    monicabilongame and nomad like this.
  2. nomad

    nomad Star commenter

    Good post, GLsghost.

    Of interest is the fact that you do not need to be a member of a trade union. You can ask an official from any trade union to come with you. The union doesn't have to be recognised by your employer.
     
  3. GLsghost

    GLsghost Star commenter

    Indeed so, @nomad. Not everyone realises this, which provides another option.
     
    monicabilongame and snowyhead like this.
  4. stmha

    stmha Established commenter

    If you have a disability could you not request that it would be a reasonable adjustment to allow a family member or someone else you trusted to accompany you?
     
  5. GLsghost

    GLsghost Star commenter

    There's no statutory provision for it. 'Reasonable adjustments' has a specific application to the workplace, to enable a person to be able to do his/her job. If a person does not need to be accompanied to do the job, I don't see why it should suddenly be required for a disciplinary meeting.

    As with everything, it would be fact-dependent. I can imagine scenarios where unreasonable refusal could be argued to have contributed to an unfair disciplinary procedure.
     
  6. TheoGriff

    TheoGriff Star commenter

    .

    I know of a case where an official of a non-teaching union was granted leave to attend to support a teacher, which is an extension of @nomad 's point I believe.

    .
     
  7. stmha

    stmha Established commenter

    I am thinking really of mental health issues e.g. depression, ADHD, Dyslexia, dyspraxia, etc Surely if we have an employee with a disability then it is likely that RA's are already in place (some hope). If a disabled employee requests that an alternative is made to the provision of accompaniment an this is refused then this could be classed as discrimination.

    I think many employers will now be more open to this provision which is very positive. For instance where an employee has blown the whistle they are likely to have been isolated from other employee's (and lets face it unions will turn any victory into a glorious defeat) so having an alternative will be good news.
     
  8. snowyhead

    snowyhead Lead commenter

    I think GLsghost covered that in their previous post (see above Theo's post). Incidentally, are dyslexia and dyspraxia now considered to be mental health conditions or conditions that require specialist teaching interventions?
     
  9. GLsghost

    GLsghost Star commenter

    If only it were that simple!
    Actually just off on holiday, (yes, again!) but happy to unpick this one when I get back, if it's still hanging.
     
    snowyhead likes this.
  10. stmha

    stmha Established commenter

    No they are not mental health issues, sorry should have put an AND after the word depression. They are neuro-diverse conditions which affect many people, many of whom have been hounded out of work through illegal practices. Only 15% of Neuro-diverse individuals are currently employed. Many of these have exceptional skills and with the appropriate adjustments would be an asset to any employer.

    Currently assisting a man who is being judged to be failing. He is nothing short of a mathematical genius and yet his employer thinks he is subnormal. He offends people with his anecdotes "that's like ...." and can't see its a product of their condition.

    Consequently it means that this fellow doesn't need to rely on workplace colleagues or union officials to accompany him.

    He isn't a teacher
     
  11. stmha

    stmha Established commenter

    Excellent put down, GLsghost will be hanging on every second until your return. However, still nice to know you are not hounding me...look forward to our continued debate.
     
  12. Crowbob

    Crowbob Lead commenter

    Although obiter, the judge in the case under discussion seems to think otherwise. See paragraph 76, where the judge uses the example of somebody who is profoundly deaf. The logic is persuasive.
     
    Last edited: Oct 2, 2015
  13. Crowbob

    Crowbob Lead commenter

    It is a really interesting case. Thanks for bringing it here.

    I think that the case is wholly exceptional. As you say, it is fact dependent and the facts in the case are pretty unusual due to the technical nature of what was in issue.

    I think that X & Y is wholly distinguishable and the cases are not really comparable. I don't see that the decision is at odds with the SC decision.

    A very interesting case, thanks for sharing.
     
  14. TheoGriff

    TheoGriff Star commenter

    .

    @snowyhead - in nu-TES they have numbered posts - look at the bottom RH corner of a post. This one is #14, for example.

    It's not very clear until you get used to it!

    .
     
  15. snowyhead

    snowyhead Lead commenter

    Cheers m'dear. I guess we did ask for numbered posts and TES have obliged - just need to wear my glasses more often.:)
     
  16. GLsghost

    GLsghost Star commenter

    Catching up post-holiday.

    Yes, I agree: Stevens and X&Y ARE wholly distinguishable and that's the point I was making. @Crowbob

    X&Y relates to legal representation in internal disciplinary proceedings, whereas Stevens considers the right to be accompanied by a representative of an organisation that is neither a trade union nor a colleague but whose supporting role has been comparable to that of a trade union representative.

    The Stevens case is not so exceptional that parallels could not be found in the investigation of a teacher, where their representation if provided by Edapt or a CA caseworker, IMO. I have had a conversation with our supervising solicitors about this and we think it is at least strongly arguable that representation by such organisations should not be denied, on the basis of the Stevens decision.
     

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