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Refusal to allow companion at hearing contributed to constructive dismissal

Posted by TonyBrownEmploymentSolicitor on January 20, 2014

An employee has succeeded in her claim for constructive unfair dismissal after her employer’s refusal to allow her to be accompanied by her preferred companion at a disciplinary hearing contributed to a breakdown of trust and confidence in the employment relationship.

The Claimant was employed as a Practice Manager in a dental surgery. The Claimant failed to record a fellow employee's sickness absence and a disciplinary process was commenced which resulted in the Claimant being invited to a disciplinary hearing. The Claimant’s request to be accompanied at the disciplinary hearing by the former owner of the business, who continued to work for the practice, was rejected by the new owner who believed that the former owner would support the Claimant's position. The Claimant went off sick and ultimately resigned.

The Claimant issued a claim for constructive unfair dismissal. In relation to the refusal to allow the Claimant to be accompanied, the tribunal ruled that the employer’s refusal had been unreasonable and that it contributed to a breach of trust and confidence, leaving the Claimant to have to attend the disciplinary hearing on her own and under duress. Further it found that there were no grounds for believing that the Claimant's proposed companion would have prejudiced the proper conduct of the disciplinary hearing. Having considered all of the alleged breaches the tribunal found that the employer had breached the implied duty to maintain trust and confidence in the way it handled the disciplinary process.

Comment

Last year the EAT ruled that a worker's statutory right to be accompanied at a disciplinary or grievance hearing is limited only by the reasonableness of the request to be accompanied, not in the choice of a companion. It was therefore no surprise that the tribunal in the latest case ruled that the employer’s refusal to allow the Claimant to be accompanied by the former business owner was unreasonable. However, an employee’s compensation for being denied her statutory right to be accompanied is limited to 2 week’s pay under the legislation. In the latest case the Claimant side stepped the limit on compensation by relying on the breach of her statutory right as part of her claim for constructive dismissal.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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