As you are hopefully aware, all employees have a statutory right to be accompanied at all disciplinary and grievance hearings by a colleague or a trade union representative. But there are still many other types of formal meetings that may take place between an employee and an employer where the statutory right to be accompanied does not apply.
In the case of St Francis Hospice v Burn, the employee argued that she should have been allowed a companion at a meeting with management, and that by failing to allow this her employer was in breach of its duty of trust and confidence.
Ms Burn was a nurse at the hospice and had been off work due to long-term sickness absence. A return to work meeting was due to take place. She had asked to be accompanied at the meeting but this request was refused. Along with various other matters, Ms Burn argued that this was a fundamental breach on the employer’s part, entitling her to resign and claim constructive dismissal.
At the Employment Tribunal the judge agreed with Ms Burn’s argument and she was found to have been constructively dismissed. The hospice appealed to the Employment Appeal Tribunal (EAT) and the appeal was on several grounds, most of which related to Ms Burn’s other arguments. However, in relation to the right to be accompanied, the hospice argued that as this is dictated by statute, it should not be possible for an employer to be in breach of contract if they do not go beyond the statutory requirements.
The EAT considered this argument, but found that there had been no error in the Tribunal’s reasoning. The context was very important. Ms Burn had been away from work for a long time, was suffering from anxiety, and her GP had supported her request to have a companion with her at the meeting. In the circumstances of this particular case, unreasonably refusing to allow Ms Burn to be accompanied to the meeting was capable of amounting to a breach of the implied duty of trust and confidence.
So what can we learn from this case? While employment law is an area which is governed by many statutes, it is always crucial to bear the duty of trust and confidence in mind. This case was very specific to its facts, but it does illustrate that employers should try and look at the bigger picture rather than just the minimum of what legislation requires them to do.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).