Settlement Agreements and the right to be accompanied

Many settlement agreements are the result of some form of disciplinary or grievance being raised either against or by an employee. In many cases an employee will have attended or will be due to attend hearings as part of these processes.

Under employment legislation, a worker is entitled to be accompanied by another of the employer’s worker (i.e. a colleague) or Trade Union representative to disciplinary and grievance hearings. Where somebody reasonably requests to be accompanied to such a hearing an employer must allow the companion to attend the hearing with that person.

In a recent case (Leeds Dental Practice v Rose), the Employment Appeals Tribunal (EAT) held that an employer’s refusal to allow one of its employee to be accompanied at a disciplinary hearing was a breach of trust and confidence which had entitled the employee to resign and claim constructive unfair dismissal.

This is an important decision. Firstly, in this case the desired companion was arguable not a ‘worker’ as he was self-employed. Prior to this case it was considered that only ‘workers’ were covered by the legislation above. Secondly, the reason for the refusal was because the employer believed that the companion would be ‘supportive’ of the Claimant’s case. The EAT decided that it was unreasonable for the employer to refuse for this reason. It stated that the employer had misunderstood the role of the companion and that, even if the companion was supportive of the Claimant’s case, their role at the hearing was to put the worker’s case forward but not to answer questions on the worker’s behalf. Allowing the desired companion in this case would not have prejudiced the hearing in any way. By denying the Claimant the right to be accompanied by her desired companion they had left the Claimant with no option but to attend the hearing alone and under duress.

The EAT’s decision must be kept in context. This was only one of a number of breaches of the duty of trust and confidence by the employer. It remains to be seen whether this matter alone would have entitled the Claimant to successfully bring a claim for constructive unfair dismissal. We shall have to wait and see how case law progresses in this matter. It certainly suggests that the Tribunal will not allow employers to refuse the right to be accompanied unless it is reasonable and the threshold seems to have been set high for this.

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